• Judgess said Chief Justice shall be at liberty to take all necessary steps to swear in the six judges if action not taken.
• Uhuru appointed 34 judges in June.
President Uhuru Kenyatta has been directed to appoint the remaining six out of 40 judges he declined to approve in June within the next 14 days.
The six judges include Aggrey Muchelule, George Odunga, Weldon Korir and Joel Ngugi, who were to serve in the Appellate court.
Chief magistrate Evans Makori and High Court registrar Judith Omange were also omitted from the list of judges gazetted.
On Thursday, High Court justices William Musyoka, James Wakiaga and George Dulu said Chief Justice Martha Koome in conjunction with the Judicial Service Commission shall be at liberty to take all necessary steps to swear in the six judges if Uhuru fails to play his part.
“Upon the lapse of the 14 days, without Uhuru having made the appointment it shall be presumed that his power to make them has expired and his office becomes functus so far as the appointments are concerned and the six nominees shall be deemed duly appointed effective from the date of default as Judges of superior courts for which they were recommended," said the bench.
The same bench has declined to suspend its own decision pending an intended appeal and directs the respondents in the case to file a formal application. The respondents as listed are the President, Chief Justice and the Attorney General.
The petition by Katiba Institute was filed last year in June when the President had refused to appoint the 41 judges but in June they filed a new application when the president left out six judges from the list.
Koome who filed her grounds of opposition alongside the Judicial Service Commission argued that they were opposing it because the petition had been overtaken by events.
Through lawyer Isaac Wamaasa, the CJ said she had no powers under the law to stop any judge of a superior court from performing his or her judicial functions.
Katiba Institute had asked the court to order the CJ and JSC not to assign work to the 34 judges appointed last month until their six colleagues are also sworn in.
Edited by CM