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The untidiness in the whole Judges Appointment saga

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All eyes are now on Chief Justice Martha Koome to see what action she will take regarding the recent high court ruling on the appointment of the remaining six Judges out of 40 who President Uhuru Kenyatta declined to appoint as was recommended by the Judicial Service Commission JSC two years ago.

The CJ has been given permission to swear in the judges after the lapse of 14 days if the President will not have done so.

On Thursday 21st October 2021 a three Judge bench of the high court did Instruct President Uhuru Kenyatta to appoint Judges Joe Ngugi, George Odunga,Weldon Korir and Aggrey Muchelule to the court of Appeal , the bench also ordered the President to appoint high court Registrar Judith Omange and Chief Magistrate Evans Makori to the environment and lands court.

“Such appointment ought to be made within 14 days upon receipt of the names. The names in question were delivered in 2019 and the delay has become unreasonable…. upon the lapse of the 14 days in above without the first respondent having made the appointments  it shall be presumed that his power to make them has expired,” said the bench consisting of High court Judges James Wakiaga,William Musyoka and George Dulu.

Further the office of the President and that of the Attorney General were slapped with the cost of the suit filed by Katiba Institute last year in June, the time when President Uhuru declined to appoint the 41 judges.

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President Uhuru Kenyatta while declining to swear in the six Judges called into question the integrity of the said Judges.

You will also remember that in July this year the Directorate of Criminal Investigations DCI raided the offices of two high court Judges on allegations of receiving bribes. One of the judges was Judge Aggrey Muchelule who had been recommended for promotion to the appeals court. Muchelule later termed the arrests as political conman ship and an assault into the Independence of the Judiciary.

“The Independence of the Judiciary is not for the faint hearted … and we are going to fight it to the bitter end,” he said.

In an interview with the press, Muchelule said the DCI officers searched his office but couldn’t find anything that would warrant any arrest.

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The ruling on the appointment of the said Judges is now the biggest test on Chief Justice Martha Koome on whether she will favor the executive or decide to abide by the orders by a court she heads. And as many legal experts are saying we are now in unchartered jurisprudential waters, why am I saying that? You see there is a particular way of how judges are supposed to be sworn in that is with the involvement of the executive arm of government even though ceremonial. But the current judgment now brings a different route of how to swear in judges whereby now the CJ will undertake the process minus the executive. This looks really untidy. And will this untidiness lead someone going to court to challenge the legality of their being sworn in by the Chief Justice?

“The situation is quite untidy, if the President and the Attorney General are not successful in getting stay of the court orders, the Chief Justice will be the one to decide whether to swear in the judges or not , ..And in the event she swears in the judges and then the court of Appeal later decides that the President was right then the six judges who would have been sworn in would have to be unsworn,” Constitutional lawyer Charles Kanjama was quoted.

Let’s not forget that the Chief Justice alongside the judicial service Commission JSC joined the case on the appointment of the six judges and whereby they opposed it saying the petition had been overtaken by events. I mean why did the CJ decide to take such a move? Was it a way to intimidate the Judges?

Majority of the legal expert argue that the President has a mere rubber stamp role in the whole judges swearing in process, but the President has maintained that his own oath of office obliges him to act in the interests of the country. Former Chief Justices Willy Mutunga and David Maraga have been on the fore front in urging the President to swear in the judges in fact in an open letter to the President in June this year Mutunga said judiciary’s independence was not negotiable saying there was a clear way of raising an issue against a sitting judge.

“In the recruitment of the judges, the President did not present any adverse reports against them hence leaving the JSC with no option but to make recommendations for appointments….that  points to bad faith ,’ he said.

Maraga who retired early this year has also rebuked the President’s move on grounds that they lack merit calling instead for the impeachment of the President for violating the constitution.

The Attorney General Paul Kihara who has accused the High court Judges of going against the constitution by allowing the Chief Justice to swear in the Judges should the President decline in doing so in 14 days has now  filled  an appeal to stop the implementation of the decision.


VIDEO OF THE DAY; https://www.youtube.com/watch?v=8CSEdtp3Hb8&t=39s