The court said the adverse NIS report must be revealed and the judges have a right to know the allegations against them. "Lack of integrity can't be classified information. It must have something to do with National security," the three0judge bench said.
It said that once the recommendations were made, the president was bound by law to appoint the 41 Judges. Uhuru, they said. has no power to review or decline the names given to him.
"We find the delay by the president in appointing the people recommended is unconstitutional. He is constitutionally bound by recommendations of the JSC on persons to be appointed as judges," they said.
NIS had written to the Judicial Service Commission ahead of the conclusion of the interview process and listed candidates they claimed were tainted. They cited integrity issues.
the three-judge bench faulted the NIS for failing to disclose particulars of the alleged adverse reports on some of the 'blacklisted judges".
Justices Lydia Achode, Chacha Mwita and James Makau said the Judges adversely mentioned in the letter were entitled to know the allegations levelled against them.
Disclosure would give them an opportunity to defend themselves, they said.
"NIS voluntarily alluded to some integrity issues on some of the judges yet declined to provide the particulars of the information they had to enable the commission to put the reports to the affected candidates for their response," the judges said.
The court held that the JSC's mandate in the recruitment of judges is not subject to the control of any person or authority.
The judges nominated include Justice Mumbi Ngugi, Justice George Odunga, Justice Joel Ngugi, Justice Aggrey Muchelule, Justice Msagha A Mbogholi and Justice Francis Tuiyot, among others.
(Edited by V. Graham)
