The High Court has declined to stop the recruitment process of a new chief justice by the Judicial Service Commission
Justice Daniel Musinga has instead ordered that the application to bar the JSC from recruiting a new CJ be certified urgent and heard on a later date.
In the case Habel Assanga Ojwang moved to court in an attempt to stop the commission from performing the task.
In his papers, the applicant argues that JSC has no constitutional mandate to advertise for the position or even purport to recommend any person for appointment to the office of the CJ.
He has asked the court to restrain JSC from “inviting or receiving any applications from the public for the recruitment of persons to the office of the CJ".
The office of the CJ fell vacant after Justice Evan Gicheru’s term ended on February 27, six months after the promulgation of the new Constitution.
The commission has since advertised for the position through daily newspapers and through a gazette notice No 2061.
The applicant now wants the adverts declared null and void saying the commission had no constitutional mandate to advertise the position.
“The president was misdirected while referring the issue of appointment of the new CJ to the JSC," reads the documents.
According to the applicant, JSC has no powers to handle the recruitment before the first general election has been held under the new constitution.
In his opinion, Section 29 of the sixth schedule which deals with new appointments gives the president powers to make such appointments until after the first elections are conducted.
The applicant said the process of nomination of the CJ has generated heat and controversy. This if not stopped, he says, would threaten national unity.
He therefore wanted the court to issue an order barring the “unconstitutional act” about to be done by the JSC.
But Justice Musinga has directed that the Attorney General, Registrar of High Court and JSC be served with the suit papers.
He has also directed that the case be heard on March 21.