The ruling by a three-judge bench ordering President Uhuru Kenyatta to promote six judges has once again created a strain in the relationship between the Executive and the Judiciary.
On Thursday, October 21, High Court judges, Justice James Wakiaga, George Nduru, and William Musyoka directed Uhuru to appoint Justices Aggrey Muchelule, George Odunga, Weldon Korir and Joel Ngugi, to serve in the Appellate Court.
The other two include Chief Magistrate Evans Makori and High Court registrar Judith Omange. Uhuru rejected to appoint these six in June 2021, arguing that their integrity was questionable.
“Upon the lapse of the 14 days, without Uhuru having made the appointment it shall be presumed that his power to make them has expired and his office becomes functus so far as the appointments are concerned and the six nominees shall be deemed duly appointed effective from the date of default as Judges of superior courts for which they were recommended,” the three judges ruled.
They further ordered Chief Justice Martha Karambu Koome to swear in the six judges once the timeline passes. Experts argue that they will wait to see whether Koome will bypass Uhuru and respect the High Court directives.
“The judgment on the appointment of the six judges is not a further indictment of President Uhuru Kenya. It is the biggest test on Chief Justice Martha Koome. She can only pass it by swearing-in the six judges on November 5,” Law Society of Kenya President, Nelson Havi stated.
"The Constitution dictates Uhuru should appoint the judges, it does not contemplate an alternative. It is a possibility that the Chief Justice will be the one to decide whether to swear in the six or not. In the event that they are sworn in and the case moves to the Court of Appeal which overturns Koome's move, then the judges would have to be unsworn. It is a very untidy situation as we are in unchartered waters," Lawyer Charles Kanjama added.
Koome has previously taken varying stands on the rejection of the six judges, as she continues to steer her administration and patch things up with the Executive.
Her predecessor, Chief Justice David Maraga, was vocal in criticising Uhuru for breaking the law and disregarding the Constitution on several issues including the appointment of the six judges.
Koome, taking over from Maraga, insisted that she would not relent in pushing Uhuru to obey court orders but also create harmony between the two arms of government.
In July 2021, the incumbent CJ asked the court to dismiss a case challenging Uhuru Kenyatta’s decision to reject the nomination of the six judges.
The CJ and the Judicial Service 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.
“The petition is in bad law, defective,” reads the document
After witnessing the swearing-in of 34 judges at State House, Nairobi on Friday, June 4, Koome, nonetheless, cautioned Uhuru against interfering with the Judiciary and urged him to appoint the remaining six.
“Many people have questioned my role in this process since I assumed office only two weeks ago. I wish to state that I had no part to play in this Constitutional process which was undertaken almost two years ago (2019 when former CJ David Maraga presented 41 judges to Uhuru). Upon forwarding the names to H.E the President, the Chief Justice and the Judicial Service Commission (JSC) became functus officio (ceased to have any role).
“We should find a lasting solution so that moving forward, this kind of delay and misunderstanding will be a thing of the past. Respect for the rule of law and the independence of the Judiciary is guaranteed under the Constitution. No person or authority is allowed to direct the JSC or the Judiciary in the execution of their mandate,” Koome cautioned.
