Court bars JSC from recruiting new judges as CJ Koome appeals swearing-in order

Chief Justice Hon. Lady Justice Martha Karambu Koome(R) at the Spice Radio when she visited the Standard Group office on Mombasa Road. [Wilberforce Okwiri, Standard]

The High Court in Nairobi has barred the Judicial Service Commission (JSC) from recruiting new judges as Chief Justice Martha Koome moved to the Court of Appeal to challenge an order for her to swear in six judges left out by President Uhuru Kenyatta.

Justice Anthony Mrima on Friday ordered the commission not to consider, review or interview applicants who had applied to be considered for the position of judges of the High Court and Court of Appeal until a case filed by Katiba Institute is heard and determined.

Justice Mrima said Katiba had convinced him that the recruitment process of judges remains uncertain if the president can reject persons nominated by the commission.

The judge said the court ought to settle if the Executive has any role in the recruitment of judges and if so, to what extent should that arm be involved during the process?

“Public interest demands that the Constitution and the law be respected and upheld. Since the extent of the involvement, if any, of the Executive in the recruitment of judges in Kenya, is yet to be determined, it is in public interest that the nature and certainty of the recruitment process be first ascertained,” ruled Justice Mrima.

Katiba lawyer Julie Soweto argued that it would be improper for the commission to consider recruiting new judges while there were others who were still waiting in line after being rejected by President Kenyatta.

She said JSC and the Chief Justice had violated court orders as she was ordered to swear in the six judges.

“It was then improper and a derogation of duty of the first respondent’s constitutional mandate to commence a subsequent recruitment process,” argued Soweto.

Meanwhile, Justice Koome has filed an appeal challenging an order by three judges to bypass President Kenyatta and swear in the judges he rejected.

In her appeal filed by lawyer Charles Kanjama, the CJ argues that Justices George Dulu, James Wakiaga, and William Musyoka erred by ordering her to take up responsibilities bestowed on the president by the Constitution.

She said her role in the recruitment process ends when the commission recommends to the president to appoint the nominees.

“The learned judges erred in law and fact by failing to consider that the CJ, as the chairperson of the Judicial Service Commission, became functus officio after having recommended to the president the second respondent herein, persons for appointment as judges as per article 172(1) (a) of the Constitution,” argues Kanjama.

According to Koome, the only remedy for the president’s defiance is impeachment and not shifting his responsibility to other arms of the government.

“It is proposed to ask the court of the following orders: A declaration that the appropriate remedy for violation of articles 3(1) and 166(1) (b) of the Constitution is the impeachment of the second respondent or any other order that secures accountability of the second respondent,” he said.

Lawyer Adrian Kamotho had filed the case before the High Court, arguing that the CJ can swear in judges in the event the president declined to do so. According to him, the role of the president is ceremonial, and he cannot choose who to swear in or leave out. He also urged the court to jail the president for defying court orders.

In his reply, the president’s lawyer Waweru Gatonye told the judges he had filed an appeal challenging their decision for him to participate in the cases.

“I am seeking a stay of the present proceedings and that application has been certified urgent. Parties were directed to file submissions, which has been done, and the position is the Court of Appeal could pronounce itself on the matter on the appeal. I urge you, for good order, to adjourn the matter, and because of the prejudice to be suffered by the court finding that he should have been made a party but ordered he should continue,” Gatonye argued.

Six cases have been filed seeking to push the president to appoint the remaining six judicial officers, who included Justices Aggrey Muchelule, Joel Ngugi, George Odunga and Weldon Korir.