Judges impasse: AG Paul Kihara goes to Court of Appeal
From left: Justices George Odunga, Joel Ngugi, Weldon Korir and Aggrey Muchelule.
Attorney General Paul Kihara Kariuki has filed a notice of appeal against the High Court's order that requires President Uhuru Kenyatta to appoint the six remaining judges, who he had earlier rejected, within 14 days.
The AG says he is dissatisfied by the judgment rendered on Thursday by Justices George Dulu, William Musyoka and James Wakiaga.
Through Deputy Chief State Counsel Emmanuel Bitta, the AG says he intends to appeal against the entire 69-page judgment.
He is aggrieved by the court's finding that the President can be sidestepped in the process of appointing judges.
He intends to challenge a finding by the court that should the President fail to make the appointments and facilitate the oath-taking ceremony within 14 days, he will lose control of the process and the judges will be deemed as duly appointed.
Legal dispute
The judges at the centre of the legal dispute are Justices George Odunga, Aggrey Muchelule, Joel Ngugi and Weldon Korir, together with Mombasa Chief Magistrate Evans Makori and High Court deputy registrar Judith Omange.
Upon lapse of the 14 days without Mr Kenyatta making the appointments, it will be presumed his power/authority on the issue is expired and the six nominees will be deemed as duly appointed to their respective offices, the High Court said.
Subsequently, Chief Justice Martha Koome and the Judicial Service Commission (JSC) will be at liberty to take all necessary steps in having the nominees sworn in and assigned duties.
In coming up with the decision to sideline the President, the three-judge bench based their ruling on a judgment made by a five-judge bench in 2016 where it was held that the appointment ought to be made within 14 days after receipt of the nominees' names.
Statutory law
That determination was not appealed against. A similar declaration was made in 2020 by another three-judge bench.
The court also found that there is nothing in the Constitution nor legislation which requires that Judges be sworn in before the President.
The bench comprising Justices George Dulu, William Musyoka and James Wakiaga found that the current practice of Judges being sworn in before the President is not founded on any constitutional or statutory law.
"We are of the view that it is perhaps founded on tradition, based on his role as Head of State. The tradition and practice in Kenya is that Judges are sworn in by the Chief Registrar of the Judiciary in the presence of the President," they said.
They found there is no constitutional and legal framework upon which the President is required to have the nominee Judges sworn before him.
Further, that the President having failed to follow the tradition or practice to have them formally appointed through gazettement, and thereafter sworn or affirmed before him, the court could quite properly deem them to be duly appointed.
"We have not seen any constitutional or legislative provision, and none has been pointed out to us, which would bar the Chief Justice from swearing in the Judges, for there is no provision anywhere which gives the President a constitutional or legal role or mandate or duty in the swearing of Judges. This then leaves it open for their swearing in before the Head of the Judiciary," stated the court.
