Activist Okiya Omtatah has filed another petition in court seeking to block Deputy Chief Justice (DCJ) Philomena Mwilu from acting as Chief Justice.
The activist is challenging outgoing CJ David Maraga's decision to relinquish his powers to his deputy until the Judicial Service Commission (JSC) appoints a new boss.
Mr Omtatah says Justice Maraga's decision to appoint his deputy to perform all duties of the CJ from December 12 is illegal and unconstitutional.
He says Mr Maraga has no mandate or capacity to appoint an acting CJ because there is no constitutional requirement for an outgoing CJ to recommend a person for appointment as acting CJ.
Mr Omtatah further notes that the position of acting CJ is unconstitutional because only one person is recognised by the Constitution as Chief Justice. The DCJ acts under the direction of the CJ.
"Designating the deputy chief justice as the acting chief justice is unconstitutional given it allows the DCJ to exercise full powers of the chief justice yet the appointment was done through a process which is not constitutionally permissible," he explains.
"The letter is unconstitutional for creating the position of acting chief justice - a position not contemplated by the Constitution."
The activist wants the court to issue a temporary order suspending the CJ's decision, pending the determination of his case. He also wants another order prohibiting the deputy chief justice from acting as CJ.
Mr Omtatah argues that there is no provision in the Constitution for the DCJ or any other person to act in the office of the chief justice in the absence of the Chief Justice.
"There's no provision in law for the appointment of an acting chief justice in circumstances where an office holder is retiring upon the expiry of his tenure," says the activist.
He adds that there cannot be an acting chief justice because the Constitution only recognises the chief justice appointed in accordance with Article 166(1)(a).
"Any attempt to howsoever create a substantive position of acting chief justice, including by statute, and appoint a person other than as contemplated by the Constitution, and allow him/her to exercise constitutional functions and powers of the chief justice, amounts to the creation of an unconstitutional office and the unconstitutional exercise of functions and powers of the constitutional office of the chief justice," says Mr Omtatah.
The petition, which he wants certified as extremely urgent, is awaiting directions at the Constitutional and Human Rights Division of the High Court in Milimani, Nairobi.
