The East African Court of Justice.
The long-running dispute between the Attorney General and the Law Society of Kenya over the nominee to the East African Court of Justice (EACJ) has intensified, with the Court of Appeal now permitting the State to challenge a High Court judgment that nullified the appointment.
At the heart of the dispute is a power struggle over who holds the legal authority to nominate Kenya’s judge to the EACJ — the Executive (through the Attorney General and the relevant Cabinet Secretary) or the Judicial Service Commission (JSC).
The Court of Appeal has allowed the Attorney General and the Cabinet Secretary for East African Community Affairs to file their appeal out of time, ruling that the 11-day delay was “not inordinate” and had been “sufficiently explained.”
The State had cited the President’s absence during an African Union meeting as the reason for the delay. The court noted that denying the extension would have “completely shut out” the applicants from seeking justice.
In its ruling, the court stated: “I consider the reasons given for the delay to be reasonable, as the applicants’ contention that it was not possible to receive instructions in due time due to the African Heads of State meeting in Addis Ababa—where Kenya’s candidature for the Chairmanship of the African Union Commission was at stake—has not been disputed by any party.”
The East African Court of Justice.
This decision revives the government’s bid to reinstate Mokua Zablon Muruka’s nomination as Kenya’s judge at the regional court.
Earlier this year, the High Court nullified his nomination to the East African Community Secretariat, ruling that the process violated the Constitution.
The High Court held that only the Judicial Service Commission (JSC)—not the Executive Office of the President—has the legal mandate to determine judicial qualifications in Kenya, including nominations to the EACJ.
“The Executive Office of the President lacks the constitutional and legal authority to assess whether a person meets the requirements for judicial appointment in Kenya, which are also prerequisites for nomination to the East African Court of Justice,” the court ruled.
The High Court further found that the Cabinet Secretary’s April 18, 2024, letter recommending Mr Muruka’s appointment “lacked transparency and accountability,” denying qualified Kenyans a fair opportunity.
It declared the process “invalid, null, and void” because the JSC had not evaluated Mr Muruka’s competence, integrity, or suitability.
The court emphasised that nominees must satisfy Article 24(1) of the EAC Treaty and Kenya’s judicial appointment criteria, including proven integrity and at least ten years of relevant legal experience.
Recognizing the constitutional dispute between the AG/Executive and the LSK, the High Court affirmed that the JSC—not the Executive—holds the authority to determine EACJ qualifications.
The LSK, which filed the petition, argued that Mr Muruka failed to meet constitutional standards and that his nomination was conducted secretly. It questioned his legal experience in Kenya and contended that he did not fulfill the competence requirements under Article 24(1) of the Treaty.
The society maintained that the Constitution mandates public participation and transparency in judicial appointments, neither of which occurred in this case. The High Court agreed, ruling that the nomination violated multiple constitutional provisions.
The State has consistently argued that the Summit of EAC Heads of State—not Kenyan courts—holds the authority to assess nominees’ suitability. In court, the Attorney General asserted that “competency is to be assessed by the Summit, not this court.”
The government also claimed that no law dictates how partner states must nominate EACJ judges and that the Executive has historically handled nominations. The High Court rejected this argument, ruling that Kenya’s constitutional framework requires JSC involvement before any nomination.
Mr Muruka supported the State’s position, stating that Kenya has followed the same nomination process since the EACJ’s establishment and that his appointment complied with the Treaty.
He argued that disputes over his nomination should be filed at the EACJ, not Kenyan courts. However, the court dismissed this, stating that the case involved “domestic constitutional compliance” and thus fell under Kenya’s jurisdiction.
The Court of Appeal’s ruling allows the government to proceed with a full appeal but did not assess the merits of the case, noting that a single judge could not determine if the appeal was arguable.
It found no prejudice to the LSK in granting the extension, as no appointment had been finalized and the EACJ remained operational despite the vacancy.
The LSK opposed the extension, calling the delay unexplained and claiming Kenya’s failure to nominate a lawful judge had “grounded” the EACJ. The appeal will ultimately decide whether Kenya’s Executive retains nomination discretion or if the JSC must vet candidates.
The High Court stressed that judicial appointments must uphold constitutional values of transparency, accountability, and public participation—principles it found were ignored in Mr Muruka’s nomination to the Arusha-based court.
The Court of Appeal has granted the government 30 days to file its substantive appeal. With the dispute nearing its second year, the legal battle is far from over.
