Activist Okiya Omtatah has moved to court to have the recently appointed seven judges of the Court of Appeal removed from office.
In a certificate of urgency application, Omtatah is asking the High Court to bar the seven from the office saying there is no vacancy for seven judges at the appellant court.
The seven were appointed on July 19, 2022, by President Uhuru Kenyatta after receiving their names from Chief Justice Martha Koome.
Faulting the JSC, Omtatah claims only six slots were advertised but seven judges were picked.
"The Judicial Service Commission JSC has no capacity in law to advertise for six vacancies and appoint seven individuals to fill them," says the activist
According to Omtatah, for the recruitment process to be lawful all vacancies must be advertised.
He adds that in order not to discriminate against the seven; all of them should be barred from assuming office as the process of recruitment and appointment is questionable and unconstitutional
"Consequentially, it goes without saying that one of the seven new judges is a product of corruption and his/her appointment invalidated the entire recruitment process, " Omtatah says
Omtatah reacted to High Court's decision
The judges whom Omtatah is seeking to have the doors of Court of Appeal slammed on their faces are Luka Kimaru, Lydia Achode, Fredrick Ochieng, John Mativo, Grace Ngenye, Aroni Abida Ali, and Paul Mwaniki.
The case has been filed a day after three judges of the High Court George Ndulu, James Wakiaga and William Musyoka declined to compel the CJ to swear in six judges whom Kenyatta rejected in 2019.
Four of those six judges were slotted for the court of appeal; they are George Vincent Odunga, Prof.Justice Joel Mwaura Ngugi, Justice Weldon Kipyegon Korir, Justice Aggrey Muchelule and Otsyula.
The other two Evans Makori Kiago and Judith Elizabeth Omange Cheruiyot were appointed to join the High Court Bench
President Kenyatta declined to appoint the six and appointed 34 judges who had been recommended to him by the JSC. One of the nominees died before the appointment.
In the pleadings, Omtatah further accused the JSC of discrimination against judges of the Environment and Land Court, and the Employment and Labour Relations Court.
It is his argument that over the years no judge from the two specialist courts has been appointed to the Court of Appeal even though many of them apply for such appointments.
"Apart from frustrating the career advancement of these judges, the Court of Appeal is worse off for not having their expertise on board yet appeals from the two specialist courts lie in the Court of Appeal, " Omtatah says.
He also wants the court to temporarily suspend Gazette Notice No. 8665 dated July 19, 2022, in which President Kenyatta appointed the seven to be Judges of the Court of Appeal.
"Pending the inter partes hearing and determination of this petition the court be pleased to issue a temporary order of prohibition restraining the JSC and Attorney General and the President, whether by themselves or any of their employees or agents or any person claiming to act under their authority, from proceeding to give effect, howsoever, to Gazette Notice No.8665 of July 19, 2022, including by swearing them into office and allowing the seven to operate as Judges of the Court of Appeal," Omtatah stated.