The Law Society of Kenya has sued the state over the failure to swear-in Appeal Judge Mohammed Warsame as a member of the Judicial Service Commission.
The society wants justice Warsame to be allowed to sit in JSC meetings pending his swearing-in. The commission .
The Attorney General Paul Kihara Kariuki and Chief Justice David Maraga are named as respondents.
On March 9, Justice Warsame was elected to JSC to represent appeal judges but is yet to take oath to assume the role.
LSK says the omission by President Uhuru Kenyatta is a violation of Constitution and dereliction of duty.
"It's an omission that has the deleterious effect of undermining the functioning of judiciary and it's independence," LSK said.
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Warsame's JSC membership was a subject of a High Court matter after MPs insisted he has to be vetted.
On July 6, Justice Chacha Mwita ruled that the judge is not subject for approval by Parliament through vetting.
He said the results of the elections conducted were final and that an appellate judge did not need any approval from any other body.
According to the judge, members who are subjected to elections are deemed vetted by their colleagues who voted them in.