The Court of Appeal has thwarted an attempt by four Kenyans to delay the Judicial Service Commission (JSC) from finding the country's Chief Justice and a Supreme Court judge.
This means the JSC can continue with the process of selecting a CJ from the 10 candidates it interviewed last week, shortlisting and forwarding the name to President Uhuru Kenyatta for appointment.
The ruling also allows the JSC to start interviews for a Supreme Court judge, which were scheduled to start Monday, to fill the vacancy occasioned by the retirement of justice Jackton Ojwang last year.
In its ruling, the appellate said the orders granted by the High Court to the four Kenyans, barring the continuation of the recruitment process for the Chief Justice and Supreme Court judge, should not be implemented.
Justices Roselyne Nambuye, Patrick Kiage and Sankale Ole Kantai also barred the High Court from further hearing the petition pending the determination on the appeals filed by the JSC and the Attorney-General.
The High Court had halted the recruitment pending hearing and determination of the consolidated petition filed by Tolphin Nafula, Phillip Thuita, Damaris Wakiuru and Memba Ocharo.
But the appeals court said the High Court erred in granting the injunctive orders without addressing the question raised by the JSC - whether it has legal power and authority to entertain the issues raised by the petitioners, one being the removal of some JSC commissioners.
"Jurisdiction had been objected to on the basis that as the removal of a member of a constitutional commission had been raised by the petitioners, the proper forum and procedure to address the issue was the National Assembly, by way of a petition presented thereto, by dint of Article 251 of the Constitution,” the Court of Appeal judges said.
That article sets out the process for removal of a member of a constitutional commission, which includes presentation of a petition to the National Assembly and appointment of a tribunal to investigate the matter, before recommendation to the President for removal.
The judges stated that considering the authority of the High Court was under a serious attack, and the presiding bench having not addressed the issue, the appeal was rendered eminently arguable.
"It seems quite obvious that with such an objection before it, the High Court was obligated to make a determination on it. To fail to pronounce on it and proceed to issue conservatory orders opened that court to the perception of possible judicial overreach, an usurpation of jurisdiction to inquire into a matter reserved to a different and competent authority, contrary to the doctrine of deference," said the judges.
They added that courts should endeavor to facilitate obedience to and observance of constitutional bounds and statutory timeliness.
In the case before them, the Attorney-General and JSC urged that truncating the interview and nomination process for the Chief Justice and eventual appointment will lead to an overshoot of the statutory timelines, with a real and present danger of a constitutional crisis.
"We are not persuaded that we should actively aid and abet such a result," they stated.
The court added that the completion of the recruitment process per se does not immunise, provide blanket cover or otherwise whitewash any procedural or substantive wrongs and iniquities, for the High Court may yet invalidate even a concluded appointment, if such be proved.
The judges directed the appellants (JSC and AG) to file and serve the defendants with the court documents within 30 days for expeditious disposal of the case.
