Chief Justice Martha Koome Judicial Service Commission (JSC) have asked the High Court to dismiss a case challenging President Uhuru Kenyatta’s decision to reject the nomination of six judges.
The case was filed by activist group Katiba Institute seeking to compel Kenyatta to approve nomination of six judges he left out in his latest Judiciary appointments.
“The petition is in bad law, fatally defective and an abuse of the process,” reads the documents.
Koome and JSC argued that they have no powers to stop any judge of a superior court or judicial officer from performing his or her judicial functions.
Katiba Institute filed an application at the High Court, challenging the appointment of the 34 Judges and omission of six nominees by the President.
According to the institute, the swearing-in of the 34 violated the constitution as well as the rights of the remaining six.
In an application filed through their lawyer Dudley Ochiel, the Institute argued that Article 166( 1) commands the President to appoint judges of superior courts in accordance with the recommendation of the Judicial Service Commission (JSC).
They termed the President’s move as ‘cherry-picking’ which undermines the functions of the JSC.
“The cherry-picking and selective appointment or swearing in of judges undermines the functions and powers of the Judicial Service Commission and the functioning of the Judiciary. It also is an improper extension of the role of the Executive and has created a constitutional crisis,” reads part of the application.
However, Kenyatta’s lawyer Waweru Gatonye says they will be seeking to adjourn the matter today before the three-judge bench.
Gatonye says that they moved to the Court of Appeal and the matter has been certified as urgent.
In a letter, Gatonye says there is a possibility that the High Court may be embarrassed if it proceeds with the hearing notwithstanding the proceedings in the appellate court.
The Head of State declined to appoint High Court judges Prof. Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir to the Court of Appeal, as well as High Court registrar Judith Omange and Chief Magistrate Evans Makori as High Court judges in the Lands and Environment division.