•A three-judge bench delivered its decision on the matter.
•Those left out were Justices George Vincent Odunga, Joel Mwaura Ngugi, Weldon Kipyegon Korir, Aggrey Muchelule Otsyula and Magistrates Evans Makori Kiago and Judith Elizabeth Omange Cheruiyot.
Image: JUDICIARY
The High Court has directed President Uhuru Kenyatta to appoint the remaining six judges to their respective courts within 14 days.
However, the litmus test remains whether Chief Justice Martha Koome in conjunction with Judicial Service Commission will agree to swear them in if the president defies the court orders.
A three-judge bench delivered its decision on the matter.
The judges said once the 14 days lapse without Uhuru appointing them, it shall be presumed that his power to appoint them has expired and his office becomes powerless as far as the appointments are concerned.
Justices William Musyoka, James Wakiaga and George Dulu said the six nominees shall be considered duly appointed effective from the date of default as judges of superior courts for which they were recommended.
“After their being deemed appointed, the CJ in conjunction with JSC shall be at liberty to take all necessary steps to swear in the six judges,” they said.
JSC in July 2019 interviewed, recruited and recommended 41 applicants for appointment as judges to the Court of Appeal, the Employment and Labour Relations Court and the Environment and Land Court.
One of the nominees died last year.
The President, however, refused to gazette or appoint the recommended judges on June 3 when he appointed 34 judges and rejected six nominees out of the now 40 judges proposed by the JSC.
Those left out were Justices George Vincent Odunga, Joel Mwaura Ngugi, Weldon Kipyegon Korir, Aggrey Muchelule Otsyula and Magistrates Evans Makori Kiago and Judith Elizabeth Omange Cheruiyot.
Katiba Institute subsequently lodged a case in court seeking to compel the President to appoint the remaining six.
Through Lawyer Dudley Ochiel it argued that a partial appointment of the nominated judges would illegally serve as a constructive removal of any nominee who is already a sitting judge and is excluded from the partial appointment.
They argued that the President's refusal to appoint the 41 Judges had significant damaging effects on the right to a fair hearing, right of access to and administration of justice and right to a fair trial.
Yesterday, the High court bench said the President was mandated to appoint the nominees as forwarded by the JSC.
This is not the first time the court has made a pronouncement over the unresolved stalemate of the Judges appointments.
Uhuru has time and time again been ordered to make the appointments in defiance.
The bench yesterday said there has been continued disobedience of the court declarations and orders made by the High court in particular in February last year in a similar case filed by city advocate Adrian Kamotho.
The judges said there was no full compliance with the order and delay means the disobedience is subsisting.
“The President’s role in the appointment of the judges is more of ceremonial and he is supposed only to facilitate. He has no discretion to tinker with the list as forwarded by the JSC,” they said.
Uhuru and the Attorney General were also directed to pay the costs of the petition to Katiba Institute.
Edited by Kiilu Damaris