• A three bench judge has said the delay by the President Uhuru Kenyatta in appointing judges recommended by the Judicial Service Commission is unconstitutional.
• The judges further said Uhuru's failure to appoint those recommended violates the constitution and JSC act.
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A three-bench judge has said the delay by the President Uhuru Kenyatta in appointing judges recommended by the Judicial Service Commission is unconstitutional.
The judges, Lydia Achode, Chacha Mwita and James Makau said Uhuru is constitutionally bound by the recommendation of JSC on persons to be appointed as judges.
The judges further said Uhuru's failure to appoint those recommended violates the constitution and JSC act.
In the case, Lawyer Adrian Kimotho moved to court challenging the delay in the appointment of several judges who qualified for promotion as recommended by the JSC last year on July 22 and August 13.
The vacancies are in the court of appeal, environment land, employment and labour relations court.
During the hearing, Chief Registrar of the Judiciary Anne Amadi said the president’s inordinate delay to formalise the appointment of the judges undermines the constitutional role of the JSC in safeguarding and promoting the independence of the Judiciary.
She said the delay will adversely affect the ease of doing business in the country and land, employment and other commercial disputes will inevitably take longer to resolve
The judges said on whether the President has the mandate to decline to appoint persons or subject list to a review.
They said it is on record that the National Intelligence Service -NIS had adverse reports regarding the named judges.
That, in their view, is why the President declined to appoint.
They said the Constitution doesn't allocate president any power to comment or make any oral comment to decline to appoint the judges.
"JSC's mandate in the recruitment of judges is not subject to control by any person or authority. The argument is therefore in some doubt on the integrity of some the judges recommended for appointment," the judges said.
The NIS had written a letter hinting there were some adverse reports on some of the judges and but did not give details even when granted time to do so.
NIS went contrary to the constitution and interfered with the independence of the JSC. We didn't understand how that was classified information. JSC's independence not a matter of conjecture but constitutionally guaranteed.Judges Lydia Achode, Chacha Mwita and James Makau
But the judges said persons adversely mentioned were entitled to an action that was lawful.
The information allegedly held by NIS was likely to affect the rights of the named persons.
JSC for that reason was under obligation to inform the affected persons to enable them to respond to the allegations.
"Without disclosure of information by the NIS, the JSC could not use the information it didn't have in violation of their rights," the judges said.
The NIS is required to act in a manner as stipulated in the constitution guided by transparency and good governance.
"The persons adversely mentioned in the letter were entitled to know the allegations levelled against them and ought to have been given an opportunity to defend themselves. NIS voluntarily alluded to some integrity issues on the judges yet declined to provide that information or evidence," the judges said.
The judges further said there are no such powers conferred on the president to allow him to decline to appoint.
"JSC had no basis whatsoever to make any findings following NIS's report on the judges. Lack of integrity can't be classified information. It must have been something to do with national security and not integrity issues on the judges," they said.
"The President can't change the list, review it or reject some of the names. He must appoint the persons recommended and forwarded to him by the JSC," the court ruled."
They added, "Once recommendations were made, the president was bound by the law to appoint those judges. The president has no legal power to question or reject the names given to him".