Attorney General, Paul Kihara Kariuki, is seeking to revert orders issued by the High Court which granted Chief Justice Martha Koome powers to overstep President Uhuru Kenyatta in the appointment and swearing-in of six judges.
Kihara, through Deputy Chief State Counsel Emmanuel Bitta, filed a notice of appeal against the junior court’s directive that ordered Uhuru to appoint the six judges in a fortnight.
The three High Court judges further ordered CJ Koome to promote and swear in their colleagues if Uhuru fails to act on their ruling within the stipulated timeline.
The AG underlined his displeasure with the ruling made by the trio, Justices George Dulu, William Musyoka and James Wakiaga.
In the notice, Kihara stated that he intends to seek orders to bar the judges from cutting down Uhuru’s powers and at the same time prevent the six judges from assuming office.
These are High Court Justices George Odunga, Aggrey Muchelule, Joel Ngugi and Weldon Korir who Uhuru rejected to appoint to the Appellate Court.
The other two are Mombasa Chief Magistrate Evans Makori and High Court Deputy Registrar Judith Omange.
While promoting 34 other judges in June 2021, Uhuru argued that the state had a dossier on the six Justices who he accused of having integrity and graft issues.
Law experts cautioned that the High Court ruling would escalate the tension and sever the relationship between the Executive and the Judiciary.
In as much as CJ Martha Koome indicated that she would not be a pushover and would also pressure Uhuru to respect the Judiciary and the Constitution, overstepping the President would be a tough call for her to make.
“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.
Dr John Khaminwa added that the court gave the CJ the licence to perform the Executive tasks. All eyes would be on CJ Koome on whether she herself would disregard the orders.
“She has no option but to perform the function. This is a good judgment for the rule of law and maintenance of constitutionalism in Kenya. She could be in a tight place but she has to obey the court orders. Kenyans are looking up at her," Khaminwa asserted.
Lawyer Charles Kanjama, however, argued that the ruling was a toll order on Koome especially with the Judiciary and Executive oscillating between mending fences and breaking apart.
With the case proceeding to the Court of Appeal, Koome may be offered a reprieve in sidestepping Uhuru as a stay order may be issued against the High Court ruling.
This would allow the Appellate Court to listen to the case beyond the 14-day time limit given to Uhuru.
