Court Overturns Uhuru's Orders on Judges

UPDATE Thursday, July 30: The High Court dismissed a case seeking to compel President Uhuru Kenyatta to appoint 41 judges picked by the Judicial Service Commission.

The case had been filed by lawyer Adrian Kamotho after the head of state decline to approve the list.

In October 2019, President Kenyatta defended his decision not to gazette the 41 judges picked by the Judicial Service Commission, indicating that he had received adverse reports on some of them.

The High Court on Thursday, February 6, ruled that President Uhuru Kenyatta's decision declining to appoint 41 judges picked by the Judicial Service Commission as unconstitutional.

Through a court case, the Law Society of Kenya sought to have President Kenyatta compelled to appoint the 41 jurists. 

The three-judge bench composed of Justices James Makau, Lydia Achode and Chacha Mwita ruled that the President had no power to review, reconsider or decline to the appointment of judges as forwarded by the Judicial Service Commission.

A past photo of President Uhuru Kenyatta, Chief Justice David Maraga and Deputy Chief Justice Philomena Mwilu.
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“The president’s failure to appoint the judges violates the Constitution and JSC Act,” ruled the judges.
















The Judges also ruled that the JSC also had no power to review the names again once they have been forwarded to the President.
















The High Court judges also faulted the National Intelligence Service for failing to disclose the adverse information they alleged against some of the judges during the interview process
















“The appointment of judges by the President should be immediate and should not delay or take time. The Constitution demands that the President appoints the judges within 14 days after the names are forwarded to him,” ruled the three-judge bench.
















In October 2019, President Kenyatta defended his decision not to gazette the 41 judges picked by the Judicial Service Commission, indicating that he had received adverse reports on some of them.
















In a report by the Standard in October 2019, Kenyatta argued that it would be irresponsible on his part to appoint the judges who enjoy the security of tenure given the integrity concerns.
















Kenyatta also revealed that he would ask relevant authorities to take legal and administrative actions on the matter.
















The head of public service Joseph Kinyua also filed an affidavit supporting the president’s directive.
















“The President received adverse reports in respect to some of the persons recommended for appointments as judges after the names of the said judges were published in the media.
















“The President believes that the Judicial Service Commission ought to have considered the information while arriving its recommendation,” read the affidavit.
















The affidavit also indicated that the president took the step in a move that ran parallel with his agenda to help weed out irresponsible public servants.
















“It would be irresponsible and contrary to the oath of office for the President to appoint judges, or indeed any other public or State officers to office, where serious questions have been raised about their integrity- more so judges who enjoy security of tenure and whose probity and integrity should be above reproach,” added Kinyua.
















In December 2019, the Judiciary suspended all sittings of the Court of Appeal in Nyeri, Kisumu and Mombasa registries citing a shortage of judges and Uhuru's failure to approve JSC appointees to facilitate the running of the appeals courts.
















In a statement delivered by Court of Appeal President William Ouko, the judiciary faulted President Uhuru Kenyatta for failing to appoint 11 Court of Appeal judges recommended by the Judicial Service Commission (JSC).
















Ouko further indicated that the Nyeri registry would be operated from Nairobi through a circuit system of once per month while Kisumu and Mombasa judges would permanently relocate to the capital, an action expected to take place by January 13, 2019.








Chief Justice David Maraga addressing the media at the Judiaciary Headquarters in November 2019