The National Assembly has suffered a blow after five judges declined to recuse themselves from a case on proposed dissolution of Parliament.
Retired CJ David Maraga had advised President Uhuru Kenyatta to dissolve Parliament for failing to meet the two-thirds gender rule. A five-judge bench was formed to handle cases filed in court over the same.
The National Assembly applied to the judges to recuse themselves, saying they were appointed by DCJ Philomena Mwilu—now acting as CJ.
The House claimed Mwilu cannot exercise powers conferred on the Chief Justice under the law.
However, the bench presided by Justice Lydia Achode ruled that the DCJ was right to appoint it on behalf of the then-CJ Maraga, who was conflicted in the matter.
The other judges in the case are George Odunga, James Makau, Anthony Ndung'u and Pauline Nyamweya.
"Our finding is that under the Constitution, the deputy CJ is the person who has the authority to undertake the functions of the chief justice in his absence or when he is unable to act,” the court ruled.
The bench further noted that the reason Maraga assigned his deputy to appoint the judges was to avoid bias because he had also been sued in the petition.
They said some of the petitioners had accused the CJ of bias in empanelling the bench, hence his decision to assign the duty to Mwilu.
“It is evident that the CJ could not, in the interest of justice, rule of law and integrity, assign judges to hear and determine cases challenging the advice he had personally given to the President,” they said.
They argued that in the circumstances, it was prudent that another person performs that function.
Petitioners in the case challenging CJ David Maraga's advisory on the dissolution of Parliament have opposed the five-judge bench appointed by Deputy Chief Justice Mwilu to hear their case.
“The office of the Deputy CJ cannot exercise powers conferred on the Chief Justice under the law,” they argued.
There are over six matters that have so far been filed on the matter of dissolution of Parliament. The cases include that of Konchellah and Munasar, who challenged Maraga's advisory.
Parliament has also sued Maraga. In another case, Attorney General Kihara Kariuki has also filed a case opposing the CJ's advisory.
Parliament argued that dissolution, as advised by the CJ, is not tenable. It argues that the decision by Maraga is a grave error and a misapprehension of the provisions of the law.
Members argue that if Parliament were to be dissolved now, no current bill generated by the Executive or through private members can not be passed or be enacted into law.
