The Appeal Court on Monday dismissed a challenge to the appointment of Justice Mohammed Warsame to the Judicial Service Commission before undergoing vetting by National Assembly.
Appeal judges Fatuma Sichale, Asike Makhandia and Philip Waki dismissed the appeal by the state on lack of merit.
In their judgment, they said the President's duty is simply to appoint an elected commissioner in three days of submission of the nominees's name.
They noted that negative consequences would ensue, as they did in this case, if there was a delay in complying with the statute and appointing a commissioner.
"We find no merit in the submissions of LSK (Law Society of Kenya) and the JSC (Judicial Service Commission)."
“ ... the main appeal has no merits and is hereby dismissed. The cross-appeal similarly has no merits and is hereby dismissed. The findings and orders of the High Court are hereby upheld,” the judges ruled.
One of the noble tasks given to the President is to make state and public appointments, even where he has no other role to play in the process of appointment, they said.
The appeal was lodged by the state through the Attorney General who was dissatisfied by High Court ruling that ordered Judge Warsame to assume his position in January at the commission.
The state declined to gazette Warsame's appointment, saying he was first to be vetted by the National Assembly.
LSK challenged the move not to swear in Warsame because he was not gazetted as a member of JSC.
It also sought to have declared as unconstitutional Section 15(2) of the JSA which gives a role to the President in nominating and appointing an elected JSC member.
In January this year, Justice Chacha Mwita ruled that President Uhuru Kenyatta violated the Constitution by failing to appoint Warsame into office more than 10 months after he was elected by his colleagues at the Court of Appeal.
It said an administrative action such as the President's appointment cannot hold a constitutional process hostage.
The court issued orders compelling the Chief Justice David Maraga and JSC to facilitate Warsame to take his position at the commission.
It declared Warsame as a duly appointed a member of the JSC by virtue of his election.
(Edited by V. Graham)
