NAIROBI, Kenya, Jun 16 — The Court of Appeal has overturned the decision of the High Court halting the recruitment of six appeal court judges and twenty others of the High Court following a suit filed by, among others, the Katiba Institute.
Justices Wanjiru Karanja, Agnes Murgor and Imaana Laibuta reversed the decision made by Justice Anthony Mrima on June 3 saying the process should proceed concurrently with the ongoing suit challenging the recruitment process.
In the judgement issued on Thursday, the three judges noted that the situation could still be remedied in the event the twenty-six judges are hired and the process later impugned.
“We hold the view that the applicants have successfully demonstrated both arguability and the nugatory aspect, and bolstered this with a demonstration that it is in the public interest that the recruitment process of the much needed Judges proceed uninterrupted pending the hearing and determination of the petition before the High Court,” the bench ruled.
“If the appeal herein is unsuccessful or if ultimately the recruitment process is impugned by the final Court with requisite jurisdiction, then as held in the Tolphin case (supra), the situation is reversible,” the judges explained.
The panel further argued Katiba Institute and the International Commission of Jurists failed to “demonstrate what prejudice they stand to suffer if the recruitment process proceeds as intended.”
While issuing a stay, Justice Mrima had argued that the two organizations had laid the legal basis to suspend the process being undertaken by the Judicial Service Commission (JSC).
“A conservatory order is hereby issued suspending any further action by JSC including invitation, consideration, evaluation, deliberation, processing, review and or interview of applicants and or applications for the appointment of the office of Court of Appeal and High Court under the decision contained in Gazette notices no. 2529 and 2530 Dated March 4, 2022, in the Kenya Gazette vol. CXXVI-No. 44 dated March 11, 2022, pending the hearing and determination of the petition,” Mrima ruled.
Among grounds cited by the Katiba-led petitioners were the fact that the JSC had failed to ensure six judges listed in the previous recruitment are appointed into office after President Uhuru Kenyatta unilaterally rejected their selection citing adverse mentions in an intelligence report.
They argued the President was constitutionally bound to appoint all the 41 persons recommended by the commission at the time.
Katiba Institute cited another petition in which President Kenyatta’s decision to pick 34 judges out of 41 judges selected by JSC was successfully challenged.
