Court dismisses plea to bar Uhuru from appointments
The High Court yesterday dismissed a petition filed by a Nairobi-based lawyer seeking to remove President Uhuru Kenyatta from the process of appointing the six judges recruited by the Judicial Service Commission three years ago.
In the judgment, a three judge bench comprising George Dulu, James Wakiaga and William Musyoka threw out the petition by lawyer Adrian Kamotho on grounds the said petition has no merit and that the issue is not ripe for determination since there is a pending appeal filed by Attorney General at the Court of Appeal.
The standoff started in August last year after President Kenyatta declined to appoint six of the 41 judges of the High Court and Appellate Court as recommended to him by the JSC.
The six include Justices George Odunga, Joel Ngugi, Weldon Korir, Aggrey Muchelule, Evans Kiago and Judith Elizabeth Omange Cheruiyot.
Kamotho had lodged a petition to enforce the judgment issued earlier saying the judge appointees should start working without the tradition of taking oath of office in the presence of the Head of State.
The move comes after in February the High court ruled that the Head of State had no option of failing to appoint the judges and his decision was in violation of the constitution. The court also ruled the President would have facilitated the appointments within 14 days.
Njenga had argued that since the judges got nominated by the Judicial Service Commission (JSC) for appointment on July 22, 2019, and the President delayed to facilitate their swearing-in, the appointments have ripened “by operation of law”.
He further argued that having not complied with the stipulated time frame of 14 days, the President cannot legally appoint the 41 judges and his constitutional powers in relation to the appointments have “perished, abated and terminated in their entirety”
Yesterday the court also declined to allow Kamotho’s request to be granted “facilitative” orders directed to the Chief Registrar of the Judiciary, Inspector General of Police and the Controller of Budget to have the six judges left out sworn in as appellant judges.
Request to compel
While dismissing the request to compel the three, the judges stated that if they grant the orders sought, the same will be in vain as there is already a stay order against suspending the implementation of the judgement issued last year compelling the President to appoint the six and Chief Justice to swear them in.
“Since the six have not been appointed to date, despite several courts orders and judgement thereon, we take the view that orders sought are not ripe for granting,” ruled Judges.
“Our conclusions above, we have, therefore, come to the only logical conclusion, that the petition herein has no merit as the The CRJ, IG and Controller of Budget to which the orders of Mandamus are targeted, have not failed to act, and the duty that is sought to be enforced or compelled has not arisen or crystallised.”
The judges noted Kamotho was trying to enforce a judgement he had obtained from the same court delivered earlier relating to the appointment of the six out of 41 left out for appointment by the President Kenyatta.
At the same time the three-judge bench also dismissed a petition by Benjamin Magare Gikenyi, a consultant surgeon at Nakuru Level Five Hospital that sought damages for the six judges for the alleged discrimination by the President’s failure to appointment.
