Kenya: Fate of 41 JSC Nominees in Limbo as Court Throws Out City Lawyer's Case

The row between Chief Justice David Maraga and President Uhuru Kenyatta has taken a new twist after the High Court declined to make a decision that would have enabled the 41 judges at the centre of the fight to assume office.

A three-judge bench dismissed the application to compel Judiciary Chief Registrar Anne Amadi to swear in the 41 judges.

City lawyer Adrian Kamotho Njenga also wanted Attorney-General Paul Kihara Kariuki forced to gazette and publish the names of the judges.

The lawyer also sought an order directing the Controller of Budget to approve the withdrawal of funds from the Consolidated Fund to facilitate the judges' assumption of office.

He wanted the Inspector-General of Police directed to provide the judges with security.

But the court said the orders sought by the lawyer could not be issued to people who were not involved in the case.


The judges said the orders sought against Ms Amadi, the Controller of Budget and the Inspector of General of Police would have been difficult to enforce as the three were not respondents in the petition.

Justices Lydia Achode, Chacha Mwita and James Makau said Mr Njenga erred in seeking directives against people who were non-parties to the case.

"A court of law should not act in vain by issuing orders against persons that are not parties to a suit or application. This may lead to difficulties in enforcing such orders," the three judges said.

On the request to order the Attorney-General to gazette and publish names of the 41 judges in three days after the directive, the court said it could not be granted in isolation of the directive declaring that the appointments have crystallised.

"Only when such a declaration is made would the court consider whether to grant orders to gazette the names or publishing them in a newspaper and whether that is a requirement," the court added.

The judges also said Mr Njenga sought orders against a party described as second respondent, while the petition had the AG as the only respondent and the Judicial Service Commission, Chief Justice and the Law Society of Kenya as interested parties.

"This court cannot direct a non-existent party to perform an obligation," they said.


Despite dismissing the application, the bench said President Kenyatta's failure to appoint the judges violates the Constitution and the Judicial Service Commission Act.

"Though there is violation of the constitution, we cannot issue the orders sought," the bench ruled, citing its judgment of February 6.

Mr Njenga had moved back to court seeking alternatives of enforcing the February 6 judgment, where the same bench declared that the delay by Mr Kenyatta in appointing persons recommended by JSC is unreasonable and unconstitutional. The lawyer faulted the judges' decision, saying it is not a must that orders should only be issued to people who are parties to a case.

"Courts issue directives to banks and police to facilitate the execution of judgments. I wanted an order that would facilitate the swearing-in of the judges," Mr Njenga said.

"Joining the chief registrar as a party to the application would have meant changing the respondents."

The court on February 6 said the President is constitutionally bound by the recommendations of the JSC on people to be made judges.

"Once the JSC has made recommendations, the President cannot review, refuse, reconsider or select who to appoint," the judges said.

They added that the independence of the commission is not a matter of conjecture or speculation but a constitutional imperative that cannot be interfered with by anybody, organ or authority.

Links to drug barons and integrity questions are some of the reasons said to have made the President decline the appointments.

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