The High Court has ordered President Uhuru Kenyatta to appoint the six judges left out during the June 3, 2021 appointments within 14 days failure to which they will be deemed to have been duly appointed.
In a ruling, the High Court declared that failure by the Head of State to do so within the stipulated time will conclude that his power to appoint the six to have long expired. The six judges were vetted and recommended for appointment of promotion by the Judicial Service Commission (JSC).
The Court declared that Justices Aggrey Muchelule, George Odunga, Weldon Korir and Prof Joel Ngugi will be deemed duly appointed to the Court of Appeal if the President does not do it in 14 days.
By that ruling, the six can be sworn in before the Chief Justice at the lapse of the time.
Through a judgment read by a three-judge bench on Thursday, October 21, the judges argued that the President violated the constitution in his decision to fail to appoint them.
The trio - Justice James Wakiaga, George Nduru, and William Musyoka, noted that Uhuru ought to have made the appointments without any deductions or additions.
The case was filed by Katiba Institute seeking to compel the President to appoint the six rejected judges.
Uhuru had appointed 34 of the 40 nominees presented by the Judicial Service Commission (JSC) but left out High Court Judges Joel Ngugi, George Odunga, Aggrey Muchelule, and Weldon Korir, alongside registrar of the High Court Judith Omange and Chief Magistrate Evans Makori.
Justices Ngugi, Odunga, Muchelule, and Korir were recommended for appointment to the Court of Appeal while Omange and Makori were nominated to the Environment and Lands Court.
Uhuru defending his decision stated that the six did not meet the threshold for appointment or promotion to the designated courts and referred their nomination back to JSC.
Chief Justice Martha Koome and the JSC had written to the court to have the case thrown out.
In documents filed in court, the Chief Justice and the JSC Commission argued that the petition filed by Katiba Institute challenging the President’s decision has been overtaken by events and orders being sought against the Chief Justice cannot obtain.
Other bodies who reacted to the decision by the President to decline to appoint the judges noted that the head of state had over-stepped on his mandate.
Through lawyer Dunstan Omari, the Kenya Magistrates and Judges Association (KMJA) said Uhuru had no powers to decline appointing judges as recommended by the JSC and that they would be forced to sue him if he does not appoint the six.
High Court judge James Makau had earlier issued an order stopping the formation of a Tribunal to investigate the six.
The judge further halted any investigations arising from the decision of the president pending hearing and determination of the petitions.