The High Court has declared Zabron Mokua's nomination as a judge at the East African Court of Justice unconstitutional, dealing a fresh blow to the former Member of County Assembly (MCA) and the government.
In a ruling on Friday, January 31, Justice Chacha Mwita declared that the East African Community Cabinet Secretary can only make appointments after consulting the Judicial Service Commission (JSC).
Mokua was nominated in April 2024 by then EAC CS Peninah Malonza to the East African Court of Justice following the retirement of Justice Charles Nyachae.
Nyachae, a former chairman of the defunct Commission for the Implementation of the Constitution (CIC), resigned in November 2023, with Mokua being tipped as one of the favourites to replace him.
However, the appointment was challenged by the Law Society of Kenya (LSK), which challenged the former Basi Central Ward MCA because he was not a jurist of recognised competence worth being nominated as a judge.
"By surreptitiously handpicking the 3rd Respondent (Mr Mokua) as Kenya's nominee for the position of a kludge of the First Instance Court of the East African Court of Justice, the 1st and 2nd respondents (Attorney General and CS Malonza, respectively) denied other qualified Kenyans an opportunity to offer themselves for appointment in a competitive manner," LSK said last year.
The East African Law Society (EALS) also questioned the qualification of Malonza to send names to the council of ministers for approval.
Alongside LSK, EALS argued that the CS has no power to nominate a judge for appointment as it is only the Judicial Service Commission that is mandated to nominate one as a judge.
Amid the onslaught of petitions against Mokua, the High Court subsequently blocked Mokua's appointment as a judge of the regional court.
Dig Deeper: The EACJ was created to handle disputes between the East African Community and its member states. It operates under a set of guidelines called the EACJ Rules, which are designed to align with the provisions of the EAC Treaty.
In recent times, the regional court has been engaged in a jurisdictional dispute with Kenya's Supreme Court. One of the latest cases saw the EACJ criticise the Supreme Court for procedural errors in the impeachment case of former Nairobi Governor Mike Sonko.
Although the EACJ cannot overturn a Supreme Court ruling, its public criticism of local court decisions highlights its role in ensuring national judicial systems adhere to constitutional provisions.
