A Nakuru-based lawyer has filed a suit at the High Court in that county, challenging President William Ruto's nomination of Director of Public Prosecutions Noordin Haji as the next National Intelligence Service (NIS) director-general.
In a petition filed on Friday, lawyer Khatherine Cherotich says Mr Haji is unfit to hold the position of NIS boss and that his nomination does not meet the requirements of chapter six of the Constitution.
Ms Cherotich also cites the multiple high profile cases the DPP has withdrawn recently, which she says show he is a man who can be coerced and intimidated into violating the Constitution.
Through her lawyer Kipkoech Ng'etich, Ms Cherotich argues that President Ruto nominated Mr Haji in total disregard of the requirements that must be met under chapter six of the Constitution.
"President William Ruto disregarded chapter six of the Constitution on leadership and integrity, therefore violating the law. Mr Haji is unfit to hold the position of NIS director-general because he has, on many occasions, violated the Constitution and his oath of office while serving as the DPP," Ms Cherotich says in court papers.
"Mr Haji has, on many occasions while serving as DPP, failed to adhere to provisions of Article 157 of the Constitution, which prohibits commencement and/or withdrawal of criminal cases due to influence, coercion, consent or authority of any person.”
According to the petitioner, Mr Haji has in the past admitted to having been misled and pressured through the media, by former Director of Criminal Investigations George Kinoti, to charge Mr Rigathi Gachagua, then the Mathira member of Parliament, which she says amounts to violating the Constitution.
"Mr Haji has, on many occasions, publicly admitted that while serving as DPP, he was coerced and intimidated to charge and withdraw cases. That makes him unfit to hold the position," argues the petitioner.
"He failed to live up to his oath of office as DPP. While serving as DPP, he displayed lack of competence in discharging his duties as head of the prosecution body, compromising the public interest and demeaning the office he held," further reads the petition.
Ms Cherotich also notes that Mr Haji has never made any court appearance since his appointment on March 28, 2018, raising questions on his competence and suitability to discharge his duties as the head of the prosecution body.
The petitioner says the DPP's conduct, overall, casts doubt on whether he will independently discharge his duties as NIS boss.
Among the withdrawn high-profile cases Ms Cherotich cites are a graft case against Public Service Cabinet Secretary Aisha Jumwa and former Kenya Power boss Ben Chumo.
She also highlights cases against former Samburu Governor Moses Lenolkulal and Ken Tarus, the former Kenya Power managing director. Others mentioned include the Sh7.3 billion corruption case against Mr Gachagua and a case against Geoffrey Mwangi, a former chief executive officer of the National Hospital Insurance Fund (NHIF).
Article 157 (8) of the Constitution (2010) allows the director of public prosecutions to discontinue a prosecution with the permission of the court.
The Constitution further provides that the DPP can "discontinue at any stage before judgment is delivered, any criminal proceedings" instituted by his office.
The lawyer has sued Mr Haji, the attorney-general and the Public Service Commission.
Also named as respondents in the case filed under certificate of urgency are President Ruto, the Law Society of Kenya and the speaker of the National Assembly.
The petitioner wants the suit certified as urgent. She also wants the court to issue conservatory orders halting Mr Haji's nomination and vetting by the National Assembly.
"It is my prayer that pending the hearing and determination of the application, that the court be pleased to issue conservatory orders restraining the consideration, approval and/or appointment of Mr Haji. I ask the court to also stop Mr Haji from assuming office, in case he is approved," she says.
"I ask the court to be pleased to certify that the petition raises weighty issues on interpretation of the Constitution and fundamental rights and freedoms, and the same ought to go for empanelment of at least a three-judge bench by the chief justice for final determination and disposal of the matter,"she further pleaded with the court.
President Ruto nominated Mr Haji on May 17, ahead of the retirement of Major-General (Rtd) Philip Kameru, who has been at the helm of the intelligence agency since 2014.
In a communique by Head of Public Service Felix Koskei, the President said the nomination was meant to facilitate a smooth transition at the NIS.
