• Kihara said the President is still waiting for the determination of the Court of Appeal in a case which he (AG) filed following a declaration by the High Court.
• The High Court, in a case filed by Adrian Njenga, had ruled that the President was constitutionally bound by the recommendations by the JSC.
Blame game has rocked the appointment of 41 judges recommended to the President by the Judicial Service Commission in what threatens to further delay their confirmation.
In a new twist on Wednesday, Attorney General Kihara Kariuki accused the Judiciary of delaying the appointment of the judges to bridge the shortage in the Court of Appeal and the High Court.
“The matter is not within the control of the Office of Attorney General. It is in the Judiciary,” Kihara told a Senate committee.
He said the President is still waiting for the determination of the Court of Appeal in a case which he (AG) filed following a declaration by the High Court.
The High Court, in a case filed by Adrian Njenga, had ruled that the President was constitutionally bound by the recommendations by the JSC.
The President had been put on the spot for declining to appoint the judges recommended to him by JSC as provided for in law.
But the AG said the High Court did not compel the President to appoint the judges but only made declarations.
“It is important to note that the court did not issue any injunctive orders against the President directing him to do or refrain from doing anything; save for orders of costs, the court issued only declaratory orders,” the AG said in submission to the Senate.
The AG and Solicitor General Kennedy Ogeto appeared before the Justice and Legal Affairs Committee to explain the delays by the President to appoint the judges.
“This is a matter of great concern to this office and the honourable AG in person. And we are very aware of the fact that this has caused consequences, which are not desirable in the administration of justice,” he said.
In July 2019, the JSC interviewed and selected the 41 judges and recommended them for appointment by the President.
Some 11 names were forwarded for appointment as Court of Appeal judges and 30 for the High Court.
The judges were meant to fill the shortage that has been blamed for the huge case backlog. Currently, there are only about 11 Court of Appeal judges.
However, the President did not appoint them, with reports indicating that he had questioned the integrity of some of them.
“Can the JSC, where you sit as AG propose names of 41 judges who are by themselves either corrupt, are not fit, incompetent?” Makueni Senator Mutula Kilonzo Jnr posed.
The delay prompted Adrian Njenga to move to the High Court to compel the President to confirm the officers.
In February 2020, a three-judge bench of the High Court ruled that the President had no mandate to review, reconsider or decline to appoint those recommended for promotion by the JSC.
But the President, through the office of the AG, appealed the ruling, faulting the High Court judges for several omissions and commissions in their ruling.
“The learned judges failed to appreciate the bifurcation of the process of selection and appointment of judges and the vesting of the same into two distinct state entities,” the AG said in the submission.
JLAC chairman Okongo Omogeni (Nyamira) and Kilonzo Jr questioned the rationale for the delays.
“What is your opinion on Article 259 (8) in terms of time? If the law does not prescribe a period within which to do something then it should be done without unreasonable delay,” Omogeni said.
The AG said the matter now lies squarely with the Court of Appeal.
“Our view is that the court should be allowed to complete that process and give guidance. My answers at this stage would be prejudicial to that process,” he said.