The Katiba Institute has sued President Uhuru Kenyatta for failing to appoint 41 judges recommended for hiring by the Judicial Services Commission.
The High Court ruled that President Uhuru can be sued while in office if he violates the Constitution.
Nonetheless, the Attorney General raised an objection, saying the President cannot be sued and the suit should be struck out.
Dudley Ochiel said that since the AG sits in the JSC he knows the workload that the judges face because of the shortage of 41 judges.
“As a member of the JSC he should be moving to expedite this matter and not slowing it down. Under the Constitution, he is to promote the public interest and that is on the expedited hearing,” Ochiel said.
He asked the court to expedite the case by hearing it during the vacation period, even on Christmas day.
However, they said such proceedings ought not to be commenced against the President, whether as the individual occupant of the office or in his official capacity, but rather it ought to be through the AG.
“To that extent, it can be said that there was a misjoinder of the President, he ought not to have been named as or made a party in this proceeding,” the court ruled.
The judges also dismissed objections by the AG who is seeking to strike out the matter because the President was wrongly included in the matter.
The judges held that the misjoinder in the case would not be fatal to the petition by Katiba.
Emmanuel Bitta, for the AG, told the court they intend to apply for a stay of the proceedings because the court is seeking to enforce declarations that they have appealed to the Court of Appeal.
Justices George Dulu, William Musyoka and James Wakiaga ruled that Uhuru does not enjoy absolute immunity from a civil suit while in office.
The lobby group challenged the decision by the Executive to appoint a few of the 41 judges, not all as had been directed by the court.
The case will be mentioned on February 8 next year to confirm compliance.