The High Court has ordered President Uhuru Kenyatta to appoint the six remaining judges, who he had earlier rejected, within 14 days.
The six 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.
Additionally, the High Court said the Presidency will bear costs of the petition that was filed by Katiba Institute to enforce declaratory orders made in February 2020 to the effect that President Kenyatta had violated the Constitution.
At the same time, Attorney-General Paul Kihara Kariuki survived an attempt to be declared unfit to continue holding the office of principal legal advisor of government, due to his advise to President Kenyatta on the judges' appointment saga.
The judgment was delivered by a three-judge bench comprising Justices George Dulu, William Musyoka and James Wakiaga.
In June this year, President Kenyatta appointed 34 of the 40 judges who were recommended by the JSC.
No reasons were given at the time. Later, President Kenyatta said he snubbed their promotions in June this year on grounds that they are tainted and have integrity issues.
In his defence, the President said his decision to leave out the six was guided by the letter and spirit of the law, which he swore to defend, and the desire to serve Kenyans well.
"As long as I serve as President, I will choose the right over the convenient; I will choose the hard over the easy, and I am not doing this for myself, but for the people of Kenya and for posterity,” the President said at the time.
But in the judgment passed by the High Court Thursday, President Kenyatta appears to have been defeated in the standoff because the judges are set to start their new duties without his nod.
In making the decision to skirt the President should he again refuse to appoint the nominees, the court said the Constitution does not envisage a scenario of how to enforce execution of an obligation that an office holder has failed to perform.
When confronted by such a scenario, the judges said, the court was being urged by the petitioner to create innovative ways of enforcement.
"Because the President has failed to perform his duty since July 2019 (when JSC made the nominations of 41 judges), we are persuaded to find his power to appoint expired after 14 days. In advancement of the rule of law and to forestall further constitutional crisis and violation of the Constitution, we order that the nominees be deemed as appointed to their respective offices. This is the best way to unlock the Constitutional crisis created by President's failure to obey the court orders," said the court.
It was also held that there is no legislation that makes it mandatory for judges to be sworn in before the President, with the court noting that it is just a traditional practice that judges take oath of office in the presence of the President.
In absence of the law or a constitutional provision that requires the swearing in to be done before the President, the court said the lacuna leaves it open for the head of the Judiciary to perform the function.
In the long run, the court said, judges are sworn in by the Chief Registrar of the Judiciary and not the President.
"The President has no discretion to tinker with the list of nominees as forwarded by the JSC. The list is forwarded to him by JSC to make appointments without any subtraction," said the bench.
It is not the first time President Kenyatta has cherry-picked judges for appointment. In 2014, he initially appointed 11 judges from a list of 25. He appointed the remaining 14 judges almost a year later in May 2015.
Fate of AG Kariuki
As for the Attorney-General, the bench declined a request by the petitioner to declare AG Kariuki unfit to hold office over his advise to the President in relation to the judges' appointment saga.
But the court said Katiba Institute, through lawyer Dudley Ochiel, did not provide evidence on how the AG voted in the selection of the 41 judges and the kind of advise he gave the President on the matter.
The court, however, said the AG having participated in the recruitment and selection of the nominees as a JSC member, he was not the right person to respond to the complaints raised.
"Having taken part in the interviews, the AG was conflicted. If the Executive was of a contrary view, it should have been articulated by any other office not him," ruled the court.