Three-judge Bench to rule on fate of Chief Justice interviews today

Tuesday, April 27th, 2021 00:00 |
JSC panel during one of the interview sessions for Chief Justice. Photo/PD/FILE

The Court of Appeal will this morning decide the fate of the next Chief Justice.

This is after a three-judge bench comprising Roselyne Nambuye, Patrick Kiage and Sankale ole Kantai said it will deliver it’s decision today after hearing an application by the Judicial Service Commission (JSC) challenging last week’s High Court orders stopping it from forwarding the name of CJ nominee and the recruitment of a Supreme Court Judge.

Parties in the appeal yesterday canvassed various issues in the matter and were directed to await the appellant court’s decision on the same.

JSC through lawyer Eric Gumbo wanted the orders set aside saying they caused hardship to the entire nation and unless an order of stay is issued, the same will be rendered nugatory.

Gumbo told the judges that a lot of funds had been spent in the recruitment process.

 Attorney General Kihara Kariuki through lawyer Paul Nyamodi supported the sentiments by JSC adding that if the process is not concluded there will be a constitutional crisis.

“That if the orders are not set aside, there will be a legal vacuum especially in the process of recruiting the Chief Justice. Any vacancy in the office of the Chief Justice must be filled within six months from January 12, 2021,” said the AG.

Interview panel chair

Lawyer Waweru Gatonye for Commissioner Olive Mugenda said the Deputy Chief Justice cannot act as Chief Justice for more than six months. DCJ Philomena Mwilu is left with hardly two months in the role, he said.

Nyamodi added that no prejudice will be occasioned by four petitioners namely Tolphin Nafula, Philip Muchiri, Damaris Ndirangu and Memba Ocharo if the orders are stayed.

He said the question of who should chair the interview proceedings is already stipulated in the law.

“The question of appointment of a Chief Justice is a process and it’s not an event. The process started in January,” the court heard.

The commission said Mercy Deche chaired the process from January until March 23 when Mugenda took over. 

Nyamodi said the Deputy Chief Justice in the JSC is not there as DCJ, she is merely a representative of the Supreme Court.

However, lawyer Danstan Omari for activist Memba Ocharo opposed the arguments by  JSC and AG saying there will be a constitutional crisis if the process is halted.

He told the judges the High Court had frozen the timelines for Nairobi gubernatorial by-election and the same should apply for the CJ interviews.

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