A three-judge bench of the High Court has stopped the Judicial Service Commission (JSC) from conducting the planned interviews for a judge of the Supreme Court, pending the hearing and determination of three cases that are challenging legality of the interviews.
The bench, comprising of justices Anthony Mrima, Wilfrida Okwany and Reuben Nyakundi also stopped the JSC from deliberating on the choice and appointment of the next chief justice after the ongoing interviews which are scheduled to end on Friday.
Interviews for the position of the Supreme Court judge, which fell vacant following retirement of Justice Jackton Ojwang, were set to start on April 23.
The judges issued the interim orders after hearing three consolidated applications filed by Tolphin Nafula, Philip Muchiri, Damaris Wakiuru and Memba Ocharo challenging Prof Olive Mugenda’s role as the chairperson of the panel conducting the interviews.
Appeal the orders
Immediately the court granted the petitioners the conservatory orders, JSC lawyer Robert Mwangi said the commission will appeal the orders.
He said this is because the orders have the potential of delaying the choice of the country's next Chief Justice as well as filling of the Supreme Court judge's position.
The bench also declined a request by JSC to stay the execution of the orders.
The petitioners want the interviews to be annulled and started afresh on grounds that there is an illegality in having Prof Mugenda as the chairperson of the interviewing panel instead of the acting Chief Justice Philomena Mwilu.
Should the bench annul the interviews, the country will stay longer without a substantive Chief Justice and the acting CJ will earn more days in office.
In urging the court to stop the interviews, the petitioners' lawyers, led by Mr Elisha Angoya, said their clients stand to suffer prejudice if the interviews are allowed to continue pending the determination of the case.
They want the bench to rule that it is the acting Chief Justice who was supposed to chair the interviewing panel.
They argue that upon retirement of former Mr David Maraga as chief justice, the deputy chief justice should have taken over the interim leadership of the commission. Mr Maraga was also the chairman of JSC.
According to them, the election of Prof Mugenda to the position of chairperson relegated the acting chief justice to the status of an ordinary member of the JSC.
The commissioners elected Prof Mugenda as the interim chairperson following the exit of lawyer Mercy Ndeche, who was the vice chairperson and female member representative of the Law Society of Kenya (LSK) in JSC, on March 24 upon the expiry of her term.
The petitioners have based their argument on Article 171(2)(a) of the Constitution which provides that the chief justice “shall be the chairperson of the commission”.
"In terms of Article 171(2)(a) of the Constitution, the acting chief justice is the person who ought to chair the JSC interview process and definitely not Prof Mugenda or any other person. The manner in which judges, particularly the chief justice, is appointed is crucial to the independence of the Judiciary," they say.
They believe that failure to have Justice Mwilu as the person chairing the interview panel is in violation of Article 162(2)(a) and (b) which provides that the chief justice will be the head of the Judiciary with the deputy chief justice being the deputy head.
Hearing of the case will resume of May 3, 2021.