Law experts have expressed varying opinions on Chief Justice Martha Karambu Koome’s decision to counter an order issued to her by the Judiciary, an arm of government under her authority.
CJ Koome filed an appeal against the High Court’s directive ordering her to swear in six Judges rejected by President Uhuru Kenyatta. The six Judges include Justices Aggrey Muchelule, George Odunga, Weldon Korir and Joel Ngugi, Chief Magistrate Evans Makori and High Court Registrar Judith Omange.
Outgoing Law Society of Kenya President, Nelson Havi, told Kenyans.co.ke that Koome was avoiding being at loggerheads with the Executive as the High Court order granted her powers to bypass Uhuru.
Havi argued that Koome was undermining the Judiciary as the Judicial Service Commission (JSC) was the main complainant in the case filed against Uhuru. This was after the President rejected appointing 41 Judges in 2020. He would later preside over the swearing-in of 34 Judges in June 2021 and left the six, accusing them of having integrity issues.
“The order granted the Judiciary powers to do what the President failed to undertake and by extension, those powers went to the Chief Justice. Koome will not take any sound action against the Executive.
“What better way to do that than to have a few friends (judges) at the Court of Appeal to get an order of stay so that she does not comply with the High Court order,” Havi opined, adding that her appeal was ill-advised and was a tactical manoeuvre to avoid antagonising Uhuru.
However, the legal practitioner, who aspires to contest for the Westlands Parliamentary seat expressed optimism that the six Judges would be sworn-in once Uhuru retires from office.
Lawyer Charles Kanjama refuted Havi’s allegations arguing that the Appellate Court had not yet ruled on her appeal and thus it would be too early to crucify Koome.
“The point is every Kenyan taken to court has a right to appeal and be represented by a lawyer. To start blaming the CJ would be unconstitutional as she has every right to act in her own accordance.
“When a court order is issued, you have to obey it, but you can also disagree and oppose it through the formal and legal mechanism,” the Advocate of the High Court of Kenya told Kenyans.co.ke.
Lawyer Kamotho Waiganjo, the husband of Kirinyaga Governor, Anne Waiguru, concurred with Kanjama, stating that the appeal structure of the Judiciary exists to allow parties who are dissatisfied with decisions of lower courts to seek review.
"We ought to agree that there are differing views on the High Court decision. Why would anyone who supports the rule of law deny the CJ the constitutional right of appeal? At another level the decision of the High Court raises novel fundamental constitutional questions, some believe it amounts to a rewrite of the constitution.
"Such issues should ideally be subjected to appeal up to the Supreme Court so that they are settled with finality before application. The basic law is applied regularly by those opposing the CJ's move and those alleging that the CJ's action is consistent and coincidental with the Executive's hopes,” he responded.
Other lawyers argued that Koome is heaping pressure on the Appellate Court Judges who would feel obliged to respect her wishes as she was their boss.
“It is astonishing that a CJ heading a grossly under-funded humiliated and mistreated Judiciary would decline to exercise powers vested on her by the Constitution and affirmed by the High Court, merely to please Uhuru who threatens Judges and disobeys court orders,” activist Miguna Miguna posted.
In June 2021, former Chief Justice Willy Mutunga alleged that the High Court was always leading in upholding the Constitution, but the Court of Appeal and Supreme Courts were always wavering.
Mutunga added that the Judiciary is not yet independent and that it is at a crossroad with one section pushing for appeasing the Executive and the other undermining the rule of law.
