Reprieve for Uhuru in judges hiring row

Tuesday, November 2nd, 2021 00:00 |
President Uhuru Kenyatta. Photo/PD/PSCU

The Court of Appeal yesterday temporarily suspended the High Court order requiring President Uhuru Kenyatta to appoint six judges he had previously rejected.

Justices Roselyn Nambuye, Imaana Laibuta and Wanjiru Karanja directed status quo be maintained until November 19, when they will rule on whether to stop the High Court orders regarding the six judges.

“We shall grant a stay in the meantime so as to prepare the ruling…We feel as a court we need to bring out certain issues which we cannot do right away. The order will maintain the status as it is,” said Justice Nambuye. 

The judges issued the orders after hearing arguments from the Attorney General, President Kenyatta and the Katiba Institute regarding the appointment of the six nominees.

They also consolidated two appeals filed by the President and the Attorney General challenging the High Court order.

Separation of powers

The High Court had ordered the President to appoint the six within 14 days failure to which, his powers will be considered to have expired and they will be deemed to be duly appointed.

Justices George Dulu, William Musyoka and James Wakiaga directed Chief Justice Martha Koome to swear in the six after the lapse of the two weeks. 

The six nominees are Joel Ngugi, George Odunga, Weldon Korir, Aggrey Muchelule, Registrar of the High Court Judy Omange and Chief Magistrate Evans Kiago.

Uhuru, through lawyer Waweru Gatonye, yesterday argued that the power to appoint judges is only by the president.

“The matter before court touches on the organisation of the State and various powers created by the Constitution.

The (High Court) judges failed to appreciate the import of separation of powers before making the orders,” lawyer Gatonye told the Court of Appeal bench.

It was his argument that the High Court removed the constitutional power to appoint judges from the President and gave it to another organ.

“This is like amending the Constitution, a power the court does not have. The status quo should be preserved because if judges are appointed, they can’t be removed unless in the manner set out in Article 168 of the Constitution.

If the court were to allow appeal, it would not have power to restore conditions before appointment of judges,” he argued.

Gatonye also claimed the court was creating tension between the Judiciary and the Executive—between the President and the Chief Justice.

According to the President, the High Court potentially stands to occasion uncertainty over the legality of such proceedings to be handled by nominee judges if deemed appointed to their respective superior courts.

No direct benefit

“There is imminent danger of embarrassment and uncertainty in the dispensation of justice if the six nominees are deemed appointed as judges and they proceed to preside over legal proceedings notwithstanding the pendency of the intended appeal,” he claimed.

The application was supported by the Attorney General through State Counsel Emmanuel Bitta, who argued there was no finding or order holding the Attorney General or President to be in contempt of court.

“If we do not get an order of stay our intended appeal will be rendered nugatory.

Once they are deemed as appointed they will enjoy the benefits of judges of superior courts and the court will not be able to exercise its jurisdiction,” he said.

Katiba Institute through lawyer Dudley Ochiel opposed the application for stay arguing that there is a constant habitual contempt of court orders by the President.

“The president’s hands are dirty by his contemptuous conduct... He has no audience before you. The president’s contempt of the 2016 orders makes it difficult to enforce those orders.”

He said no appeal will be rendered nugatory if the rejected six ascend to their positions as the self-executive order only comes into effect if the president declines to comply.

“What harm would the President and AG suffer if he complies with orders directing him to appoint the judges?

It’s ironic that the AG made a recommendation for the appointment of these judges and did not raise any issue after sitting all through the interviews,” argued Ochiel.

No direct benefit

It was his argument that the public interest cannot support any further delay in appointment of the judges.

Earlier on, the bench dismissed an application by Ochiel to have one of the judges, Laibuta, recuse himself on grounds that he was in the 41 judges list.

Ochiel claimed the judge would be conflicted in the matter because he was in the partial list appointed by the Uhuru.

The AG, President and the judge, however, opposed the application arguing he had no direct benefit from the proceedings at the time they were filed.  

“I’m not any different, my appointment was made alongside others to the exclusion of others is something we did not have a hand in,” Laibuta said. 

Gatonye argued the application was meant to scatter the hearing of the application since there were only three days left until the appointments were made. 

The judges dismissed the application, saying there was no old or new team in the court of Appeal as they are all in the same position.

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