Appeal against ruling on CJ interviews to be heard today
The Court of Appeal is today expected to hear a case challenging orders stopping the Judicial Service Commission (JSC) from going on with the interviews for Chief Justice and Supreme Court judge.
This was after the Appellate Court on Friday certified the matter by JSC as urgent and directed that a three-judge bench be constituted by the acting President of the Court of Appeal.
“The application will be heard by way of videolink connected to the court and counsels on record for the parties due to the current pandemic,” reads the notice from the Deputy Registrar Lorraine Ogombe.
On Thursday last week, the JSC filed a notice of appeal after the High Court barred it from going on with the interviews for the position of Supreme Court judge and continuing with its deliberations to determine who will be Kenya’s next Chief Justice.
Last Friday, the JSC completed interviewing 10 candidates that had been shortlisted to succeed retired Chief Justice David Maraga. The commission was expected to proceed with the interviews for Supreme Court judge scheduled to start today.
On Wednesday, a bench of three judges Anthony Mrima, Reuben Nyakundi and Wilfrida Okwany issued the temporary orders pending hearing of cases filed by four petitioners namely Tolphin Nafula, Philip Muchiri, Damaris Ndirangu and Memba Ocharo.
In the appeal filed by the Attorney General Kihara Kariuki, the JSC wants the court to stay the orders stopping the commission from nominating and forwarding the name for the next Chief Justice to the President.
“The orders issued run the risk of offending section 5(4) of the Judicial Service Act provision resulting in a legal quagmire where there is no Chief Justice and the Deputy Chief Justice is precluded from acting as the CJ ,” says the AG in his court documents.
Through an affidavit filed by Solicitor General Kennedy Ogeto, Kihara argues that if the orders are not set aside, they may cause a legal or a constitutional crisis.
“By dint of section 5(4) of the Judicial Service Act, any vacancy in the office of the Chief Justice must be filled within six months from January 12, 2021 when the former CJ David Maraga retired,” says Ogeto.
The AG argues that the stay orders would not occasion any loss to the petitioners considering the substantial Constitution issues at stake.
In the consolidated case by petitioners, they are challenging the interviews on grounds they are illegal and unconstitutional.
Activist Ocharo, through Lawyer Danstan Omari, sought the conservatory orders arguing that the JSC failed to vet the candidates before shortlisting them as most candidates interviewed for the CJ position have admitted not to have submitted their wealth declaration forms in breach of Chapter Six of the Constitution.
Nafula argues that Olive Mugenda was illegally elected as the interim vice chairperson for the JSC.