The new recruitment process of 26 judges of the Court of Appeal and High Court faces a fresh hurdle after the High Court in Nairobi stopped Judicial Service Commission (JSC) from proceeding with the process.
Justice Antony Mrima, in his ruling delivered on June 3, 2022, ordered JSC to temporarily stop its further action regarding the hiring of the judges pending the hearing and determination of a case filed by Katiba Institute challenging the new recruitment process.
The judge also restrained the commission from conducting any interviews of the applicants who were gazetted last month pending the determination of the suit.
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"A conservatory order is hereby issued suspending any further action by JSC including invitation, consideration, evaluation, deliberation, processing, review and or interview of applicants and or applications for the appointment of the office of Court of Appeal and High Court under the decision contained in Gazette notices no. 2529 and 2530 Dated March 4, 2022, in the Kenya Gazette vol. CXXVI-No. 44 dated March 11, 2022, pending the hearing and determination of the petition," Mrima ruled.
While granting the interim orders, the judge noted that the petitioner Katiba Institute had successfully laid a sound Constitutional and legal basis for the grant of the orders.
The orders come after Katiba Institute challenged the JSC's move to announce 26 openings in the country’s appellate and High courts while there are pending proceedings at the Court of Appeal challenging the independence of the Judiciary, the powers of JSC and the certainty of the Constitutional process in the recruitment process of judges.
The new positions available for application include six posts at the court of appeal and 20 high court judges’ positions.
The Petitioner claims the commission's actions to commence fresh recruitment are illegal since six judges are resulting from a previous recruitment process who despite the JSC's recommendation, has not been sworn into office owing to President Uhuru Kenyatta's failure to appoint them.
Katiba Institute also faulted JSC for the current hiring process citing a High Court decision in petition number 369 of 2019 where lawyer Adrian Kamotho vs Attorney General, JSC and two others where the court found that the President is constitutionally bound to appoint all the 41 persons recommended by the commission.
Justice Mrima also heard that the President's appointment of 34 judges out of 41 recommended by the JSC, led to another petition by Katiba Institute petition number 206 of 2022 which compelled the President to appoint the six judges that were left out.
The civil rights group further told the judge that the findings of the High Court in Kamotho's and Katiba Institute cases are currently subject to an appeal at the Court of Appeal in Nairobi awaiting determination.
" The decision for the 1st and 2nd respondents to recruit more judges without first resolving the existing stalemate with the Executive is reckless, irrational and unprocedural and diminishes the JSC's independence and fails to protect and uphold the independence of the Judiciary, " Katiba Institute argued.
