The Court of Appeal on Monday, November 1, temporarily suspended High Court orders directing President Uhuru Kenyatta to appoint the six judges within 14 days.
A three judge bench consisting of, Justices Roselyn Nambuye, Wanjiru Karanja and Imaana Laibuta, granted the orders noting that the case would be determined on Friday, November 19.
President Kenyatta had petitioned the Court of Appeal to suspend the implementation of the orders from the High Court that had directed him to appoint the six judges left out, failure to which, they would be deemed duly appointed as judges.
The President, through lawyer Waweru Gatonye, had argued that the court lacked authority to give powers to another person to appoint the judges.
"The orders by the High Court amount to amending the constitution which the court has no powers to do that," Gathonye noted.
The lawyer urged the Court to issue conservatory orders since the appeal would be rendered null and void unless stay orders were issued.
During the October 21 ruling, the High Court judges noted that Kenyatta violated the constitution for failing to appoint them. They added that the President should have made the appointments without leaving out the six.
The six were Justices Joel Ngugi, George Odunga, Weldon Korir, Aggrey Muchelule, Registrar of the High Court Judy Omange and Chief Magistrate Evans Kiago.
A statement by State House stated that the judges had failed to meet the required threshold. This led to Katiba Institute filing an application in court, challenging the President's decision.
"The cherry-picking and selective appointment or swearing in of judges undermines the functions and powers of the Judicial Service Commission and the functioning of the Judiciary."
"It is an improper extension of the role of the Executive and has created a constitutional crisis," read part of the application.
However, Chief Justice Martha Koome and the Judicial Service Commission opposed the move, urging for the case filed by Katiba to be thrown out. The CJ cited that the petition was bad in law, fatally defective and was an abuse of the process of court.
