The Attorney General now says the orders issued by the court stopping JSC from conducting interviews will create a legal quagmire.
"The orders issued run the risk of offending this provision resulting in a legal quagmire where there is no Chief Justice," read court orders.
In an affidavit by Solicitor General Kennedy Ogeto, the AG argues that it might cause a legal crisis.
"Any vacancy in the office of the Chief Justice must be filled within six months from January 12 2021," Ogeto said
AG Kihara Kariuki says that they are aggrieved by the orders issued by the High Court which barred JSC from going on with the interviews for the position of Supreme Court judge and deliberating on the Chief Justice.
Ogeto says the orders have restrained JSC from undertaking its constitutional mandate to make a recommendation to the president persons for appointment as Chief Justice .
He claims that there was a preliminary objection filed by respondents challenging the jurisdiction of the judges of the High Court but it was not addressed.
Ogeto argued that they have an arguable appeal that raises bona fide and legal issues.
"Unless the court grants stay execution of ruling and orders issued by the honourable judges their appeal will be rendered nugatory," he said.
According to court documents, if the court does not stay the orders the bench runs the risk of hearing and determining the petitions without jurisdiction which will be an inefficient use of administrative resources.
Ogeto argues that the orders they are seeking shall not occasion any loss to the petitioners considering the substantial Constitution issues at stake.
He further says that there is great risk of miscarriage of justice and a violation of the mandatory provisions of the Constitution if orders are not stayed.
"It is only just and fair that the execution of the honourable judges of the High Court's decision be stayed pending the hearing and determination of the appeal application," reads court papers.
