A three-judge bench has halted proceedings in a case filed by lawyer Makau Mutua, who sought orders for the Judicial Service Commission (JSC) to disclose the scores of the 10 candidates interviewed for the Chief Justice (CJ) position.
The bench led by Justice Anthony Mrima said the issues raised by Prof Makau are similar to those in another case filed earlier by four Kenyans, challenging the legality of the JSC interview panel.
The judges noted that the Court of Appeal has since suspended hearing of the earlier case, pending determination of an appeal lodged by the JSC and the Attorney-General.
The other judges on the bench are Reuben Nyakundi and Wilfrida Okwany.
They observed that even though the stay order issued by the court was not directed at Prof Makau's petition, it also ought not to proceed because of the similarity in the issues in dispute.
Both cases relate to recruitment and appointment of the CJ and a judge of the Supreme Court.
The petitioners want the JSC to release the results of the interviews to the public for purposes of transparency in recruitment of judges in Kenya.
Prof Mutua and the Katiba Institute want the commission to publicise the marks scored by each of the 10 candidates.
Overtaken by events
The court on Tuesday noted that the interim order sought by the two petitioners had been overtaken by events.
For instance, they wanted the JSC stopped from forwarding the name of the person nominated as CJ to the President for appointment until the interview results are made public.
However, the JSC forwarded the name of Court of Appeal Judge Martha Koome to the President and she is now awaiting vetting by the National Assembly.
Through lawyer Christine Nkonge, the petitioners say that publication of the candidates' results will promote public confidence and ensure the decisions reached are not influenced by improper considerations.
In the other case, Tolphin Nafula, Phillip Thuita, Damaris Wakiuru and Memba Ocharo argue that at the point of recommending a cndidate for appointment, the JSC should disclose transcripts of interviews by each commissioner and the grades scored by each candidate.
They also want the public given the reasons for a recommendation for appointment of a CJ and a Supreme Court judge.
"The disclosure furthers the constitutional right of access to information held by the State and the constitutional requirement that public administration be transparent and accountable," reads the petition.