A three-judge bench comprising Justices Lydia Achode, James Makau and Enoch Chacha Mwita ruled that the President has no mandate to review, reconsider or decline to appoint those recommended for promotion by the Judicial Service Commission (JSC).
In a statement, the Attorney-General’s office indicated it had received the High Court judgment and has begun the process of instituting an appeal at the Court of Appeal.
The AG is dissatisfied with the High Court’s interpretation of the law and the approach taken in its findings.
“We have filed the requisite Notice of Appeal and formally requesting the High Court to provide typed and certified copies of proceedings before it,” said the statement.
These are the documents that, in law, should accompany those used in lodging an appeal before the appellate court.
The petition by lawyer Adrian Kamotho Njenga sought, among other orders, a declaration that His Excellency the President’s failure to appoint persons recommended by the JSC as judges was in violation of the Constitution.
The Attorney-General was the respondent while JSC and Chief Justice David Maraga were listed as interested parties.
According to the judges, information on integrity of judges cannot be considered as classified data which poses a threat to the security of the nation.
With regard to the timelines within which the President is expected to appoint judges after being recommended by the JSC, the bench ruled that the appointments should be immediate. They said that 14 days would be an appropriate time.
They declared that President Kenyatta is bound by the recommendations made by JSC on persons to be appointed and failure to make the appointments is a violation of the Constitution as well as the JSC Act.
“We find and hold that the delay is unreasonable and unconstitutional,” the judges ruled.
However, in the statement, the AG said that he had carefully studied the judgment and is dissatisfied with it.
“While the judgment does not contain any directive orders, the Attorney-General notes that the High Court held that the President is, regardless of any other considerations, bound by the recommendations of the JSC; and that failure to appoint the persons recommended by the JSC is a violation of the Constitution,” reads the statement.
It further states that the Attorney-General respectfully disagrees with this view of the law, as it disregards the public interest and, instead, focuses on an overly legalistic interpretation of the Constitution.
“The reasoning adopted by the High Court serves to limit a President’s ability to discharge his sworn duty of protecting the values and principles enshrined in the Constitution,” the statement said.
In addition, the reasoning adopted by the High Court negates the Constitution’s designation of the President as ''Head of State and Government'', and curtails his solemn constitutional duty and authority of ensuring that the actions of any arm of Government, particularly those that require his hand and seal in order to be brought into effect, are compliant with the written laws of the country and the principles, values and aspirations espoused in the Constitution.
President Uhuru Kenyatta failed to appoint 11 individuals as court of appeal judges, after their names were forwarded by the JSC in July last year.
They include High Court Judges Francis Tuiyott, Hellen Omondi, Pauline Nyamweya, Weldon Korir, Msagha Mbogholi, Aggrey Muchelule, Jessie Lesiit, Mumbi Ngugi, George Odunga and Joel Ngugi. Also to be considered is lawyer Imaana Laibuta.
Nine judges who were all seeking to be promoted to serve in the Appellate Court had been named in correspondences between JSC and the National Intelligence Service (NIS) regarding their background checks.
There are also lawyers marked by the NIS in the list handed over to JSC in a letter dated July 5, 2018 from Major-General Philip Kameru addressed to the Judiciary’s Chief Registrar Anne Amadi.
