Suit against top judges dismissed
Five judges of the Supreme Court can assume office after the High Court dismissed a case challenging their appointment.
The judges have not taken office because six women lobby groups obtained temporary orders stopping them from being sworn in and taking office in June. (Read: Dismiss Supreme Court nominees suit, says JSC)
A three-judge bench threw out the case where the groups accused the Judicial Service Commission of gender discrimination.
“The charge of constitutional impropriety levelled against the JSC is without any evidential basis and therefore misconceived and unfounded,” the court said.
In a 93-page judgment, the court cleared the commission, which selected and forwarded to the President the names of the five judges of any wrong doing.
But the petitioners, through lawyer Hezekiah Ongoya, said they were heading to the Court of Appeal.
The case was described by the court as a missile fired before ascertaining the target.
The judges said the petition was a guided missile launched not only at JSC, but also at the Constitution inadvertently without tangible aggression, complaint or grievance.
But the judges urged the petitioners to remain vigilant and to keep the state and legislature on their toes until all the women of Kenya are accorded full recognition and their capabilities.
“To the petitioners and their supporters, we advise that you keep your feminine missiles to their launch pads until the State acts on policies and programmes as envisaged in Article 27(6) and (8) to set the formulae, mechanisms and standards to implement the spirit and import of the Constitution,” the court said.
The women’s organisations led by the Federation Women of Lawyers - Kenya (Fida-K), had argued that the commission appointed more male than female judges contrary to the Constitution.
The five judges comprise one female and four males.
High Court judges John Mwera, Mohammed Warsame and Philomena Mwilu ruled that there was no evidence that the commission failed to comply with the said constitutional provision.
The Commission, they added, conducted the short listing, interviews and recommended the names of the five judges in accordance with the provisions of JSC Act and the Constitution.
The five judges are Prof Jackton Ojwang’, Mr Philip Tunoi, Mr Mohammed Ibrahim, Dr Smokin Wanjala and Ms Njoki Ndung’u.
