Katiba Institute v. The Chief Justice et al – Petition No. E128 of 2022
The High Court (Per Mrima J) has temporarily suspended the ongoing recruitment by the Judicial Service Commission (JSC) of judges of the Court of Appeal and the High Court.
The case was brought by Katiba Institute (Katiba) represented by Counsel Julie Soweto. Katiba has sued the Chief Justice (CJ), the Judicial Service Commission and the Attorney General. The Kenya Magistrates and Judges Association (KMJA), The Law Society of Kenya (LSK) and the International Commission of Jurists – Kenya (ICJ-Kenya) are admitted into the case as interested parties. ICJ-K supported Katiba’s application for interim orders while CJ, JSC, KMJA and LSK opposed the request.
Katiba and ICJ-Kenya argued that JSC was being unreasonable in undertaking recruitment of new judges when six of its 2019 nominee judges remains unappointed following President Uhuru Kenyatta’s refusal to appoint them. They further argue that there is pending litigation at the Court of Appeal – emanating from the President’s selective appointment of Judges – on what the constitutional powers and process of appointment of judge are. They argued that it was not logical for the JSC to start a new recruitment process since the Courts are yet to fully clarify on powers and procedures of appointment of judges.
The Respondents, KMJA and LSK argued that more judges were required to deal with case backlog including additional case work that will be generated by the imminent election petitions after August 9th, 2022 general elections. In any event, the Respondents argued that in computing the numbers of Judges to recruit, they had reserved positions for the six nominee-judges in the respective Courts they are nominated to.
Justice Mrima, issued conservatory orders stopping the JSC from undertaking any further action relating to the recruitment of the Judges. He notes that any constitutional and statutory process must be “clear, unambiguous and definite”. Yet, the ongoing paralysis on the appointment of the six judges illustrates that the process of recruitment of judges “is devoid of such clarity, and pending matters at the Court of Appeal hold the answers on the way forward.”
He notes that the issues raised by the Petition are significant, including the need for shortlisted candidates to know with certainty what process awaits them; whether those ultimately recommended by JSC should expect to undergo further scrutiny from the executive; how long it will take to be formally appointed following JSC’s recommendation, and; whether JSC is fully independent when undertaking the process of recruitment. He notes that, while there is need to increase the number judges, still the recruitment process must comply with the constitution and the law.
June 3rd, 2022
Download the ruling here