• The lawyer says it is impossible to ascertain whether an applicant for the position of a judge of a superior court has met the requirements until all members of the commission have voted.
• He says the commission is not fully constituted.
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A Nairobi advocate has moved to the High Court to challenge the recruitment of new High Court judges by the Judicial Service Commission.
Adrian Kamotho wants the commission stopped from interviewing and recommending to the President the appointment of the judges on grounds that JSC is not fully constituted.
He wants the court to suspend the ongoing shortlisting and subsequent interviews until his case is heard and determined.
In a certificate of urgency filed at the Milimani law courts, Kamotho says the case is extremely urgent as the JSC has commenced the recommendation of persons for appointment as judges of the superior courts, and should therefore be heard as a matter of priority.
According to the announcement notice, applications for all the positions were to be closed yesterday (Monday) at 5pm.
“The prevailing composition and membership of JSC during the period leading to the making recommendations of persons for appointment as judges of superior courts is uncertain," the court documents say.
He claims that any recommendation by the JSC, in line with Article 166 ( 1 ) (b), made in the absence of constitutionally designated representatives, contravenes the Constitution and provisions of the Judicial Service Act, 2011, hence it is legally unsustainable.
He further argues that in the interest of justice and sound public policy, the question relating to constitutional and statutory composition of the JSC, for purposes of recommendation of persons for appointment as judges, be resolved at the earliest stage.
“Until all members of JSC have voted, it is impossible to ascertain whether an applicant for the position of a judge of a superior court has met the threshold for recommendation for appointment,” Kamotho argues.
The lawyer further avers that the terms of the members under Article 171 ( 2 ) (d) and 171 ( 2 ) (f) of the Constitution lapse midway into the recruitment process of the judges, it is impossible to fulfill the mandatory requirements of regulations 14 ( 3 ) and 14 ( 5 ) of the First Schedule to the Judicial Service Act, 2011
Kamotho says for the voting to be lawfully complete as per Regulation 14 ( 3 ) of the Act, all members of JSC must vote, adding that an applicant is required to receive three or more affirmative votes.
“That it is thus imperative that this honourable court intervenes at the earliest instance to avert imminent statutory and constitutional breaches in the process of recommending persons for appointment as judges of superior courts,” the court documents read further.