High Court suspends recruitment of judges
The High Court has suspended the ongoing recruitment of 26 new judges following a petition by Katiba Institute claiming the exercise is illegal.
Justice Anthony Mrima has ordered the Judicial Service Commission (JSC) to suspend the exercise pending the hearing and determination of the case.
“A conservatory order is issued suspending any further action by the JSC including invitation, consideration, evaluation, deliberation, processing, review and interview of applicants and the applications for appointment to the office of Judge of the Court of Appeal and Office of Judge of the High Court,” said Justice Mrima.
He explained that the civil society group has a strong case that raises cardinal constitutional issues worth considering against the decision of the JSC and Chief Justice Martha Koome to recruit more judges at a time there is uncertainty in the law.
In the petition, the civil society group is challenging the constitutionality of the decision of the JSC to commence fresh recruitment of judges when a similar process begun by Chief Justice David Maraga (retired) was not concluded by President Uhuru Kenyatta.
It also raises issues of independence of the Chief Justice and the JSC in the recruitment of judges.
The group says it was surprised that even before the court of appeal rendered itself on issues involving the recruitment of judges, the Chief Justice would initiate a fresh recruitment process with a possibility of a repeat of what was still pending at the Court of Appeal.
In the fresh recruitment announced through Kenya Gazette notices dated March 11, 2022 the JSC intends to recruit 20 High Court judges and six for the Court of Appeal.
While suspending the exercise, Justice Mrima said the orders are to enhance constitutional values and principles that the petitioner claims have been infringed by the JSC and Chief Justice Martha Koome.
“The effect of the conservatory orders sought is to forestall a scenario where a recruitment exercise of judges is undertaken by the JSC in the midst of the uncertainty of not only the constitutional procedure but also whether the values and principles of the Constitution are contravened,” said the judge.
He noted that there are key issues pending determination before the Court of Appeal which has a serious bearing on the recruitment of judges. They include the manner in which judges in Kenya ought to be recruited and the parameters of the principle of the independence of the Judiciary and JSC.
“It cannot be gainsaid that any constitutional and statutory process must be clear, unambiguous and definite. At the moment, the process which has been initiated by the JSC and the CJ is devoid of such clarity and the pending matters at the Court of Appeal hold answers on the way forward,” said the judge.
He added that public interest demands that the Constitution and the law be respected and upheld.
“Since the extent of involvement, if any, of the Executive in the recruitment of judges in Kenya is yet to be determined, it is in the public interest that the nature and certainty of the recruitment process be first ascertained,” said Justice Mrima.
The case will be mentioned on July 7, 2022 for hearing directions.
