- The JSC was scheduled to conclude the interviews for the Chief Justice post tomorrow and thereafter proceed with the interviews of the hudge of the Supreme Court on Monday next week.
- But a bench of three judges directed the JSC not to make any further considerations or deliberations on the choice of CJ once they are done with interviews.
Image: FILE
The Judicial Service Commission will have to await the determination of cases challenging the ongoing process of recruitment of Chief Justice before it proceeds to announce a nominee.
The JSC was scheduled to conclude the interviews for the Chief Justice post tomorrow and thereafter proceed with the interviews of the judge of the Supreme Court on Monday next week.
But a bench of three judges directed the JSC not to make any further considerations or deliberations on the choice of CJ once they are done with the interviews on Friday.
Justices Anthony Mrima, Wilfrida Okwany and Reuben Nyakundi said the JSC can only proceed with the interviews to their conclusions.
In addition, the bench halted the interviews for the position of Supreme Court judge of Kenya. The position fell vacant following the retirement of Justice Jackton Ojwang in February last year.
An attempt by the JSC and commissioner Olive Mugenda to have the bench stay its decision pending an appeal was thwarted.
Justice Mrima said they have ample time to approach the appellate court before the orders they have issued take effect. “We decline to issue an interim stay. The orders we have issued will take effect after the competition of interviews for the position of CJ this Friday. You have ample time to appeal,” he said.
Those that had been shortlisted for the Supreme Court judge position include Justice Said Chitembwe, Justice Martha Koome, Justice M’inoti Kathurima, Justice Nduma Nderi, Lumumba Nyaberi, Justice William Ouko, Justice Joseph Sergon and Alice Yano.
The JSC had planned that two candidates would be appearing before the commission each day, with one to be interviewed in the morning and another in the afternoon.
The orders were issued after Tolphin Nafula, Philip Muchiri, Damaris Wakiuru and Memba Ocharo (petitioners) challenged the constitutionality of the ongoing process.
The petitioners had filed their cases separately except for Muchiri and Wakiuru but all matters were consolidated yesterday.
Muchiri and Wakiuru argued that Mugenda was before and after her appointment to chair the JSC remained chairperson of the Kenyatta University Teaching and Referral Hospital and a lecturer at Kenyatta University.
They told the bench that Mugenda has been serving in two distinct state office positions which is illegal. “The continued participation of Mugenda in JSC proceedings unless suspended may expose all decisions of the commission to cancellation,” they said.
As a result, the two sought an order restraining Mugenda from in any way participating in any meetings or resolutions of the JSC.
On the other hand, Ocharo represented by lawyer Danstan Omari and Shadrack Wambui told the court that candidates being interviewed have not complied with the law in providing wealth declaration forms for their spouses.
“The advert spelt out that condition. Therefore anybody being interviewed is unqualified. If they are allowed to continue being interviewed, it will be a waste of public money,” Omari said.
But the JSC represented by Eric Gumbo argued that there will be great prejudice in stopping the process.
Waweru Gatonye for Mugenda was also opposed to the application for conservatory order. He asked the court to consider the resources that have gone into preparing the process.
Lawyer Paul Nyamodi representing the Attorney General associated himself with the submissions made by Gumbo and Gatonye. He said the court should first hear an application challenging their jurisdiction before the conservatory orders are issues.
“I submit that this court would not be handicapped if at this juncture it did not grant conservatory order. This court is able to make effective orders. This is not a matter where conservatory orders should be issued at this juncture. Let the main petition be heard and determined before the court makes orders,” he said.
Case to be heard May 3.
-Edited by SKanyara