The new law giving the President powers to select the Chief Justice and Deputy Chief Justice will continue to apply after the court declined to suspend them.
The Law Society of Kenya (LSK) moved to court Wednesday to challenge constitutionality of the law MPs passed in December last year.
High Court Judge George Odunga acknowledged the urgency of the application but did not issue temporary orders halting its implementation.
He said the application has raised critical constitutional questions and should be heard expeditiously.
“I am satisfied the matter is urgent and ought to be heard expeditiously but I cannot issue orders at this stage to suspend the implementation of the law because there will be no prejudice suffered within the seven days given for the inter-parties hearing,” said Justice Odunga.
He said issues raised in the application are critical given the amendments affect the independence of the Judiciary and interfered with the provision of separation of powers.
Justice Odunga directed that parties be served and set the hearing for January 13, 2016.
LSK has faulted the new law, which came into effect on December 15, 2015 saying it has amended critical sections of the Judicial Service Act therefore interfering with the independence of the judiciary.
“The Act, as amended, upsets the doctrine of separation of powers between the three arms of government and should be suspended because the independence of the judiciary is at stake,” LSK said through senior counsel Nzamba Kitonga.
JUDICIARY'S AUTONOMY THREATENED
“The Constitution has clearly stated that the Judicial Service Commission shall forward one name of a qualified person to the President for nomination as Chief Justice or Deputy Chief Justice but the new laws have come up with a formulation requiring JSC to forward three names,” Mr Kitonga added.
On Monday LSK appointed lawyers Prof Tom Ojienda, Nzamba Kitonga, Michael Muchemi and Peter Wanyama to challenge the law on grounds that it usurped the powers of the Judiciary in the appointment of the Chief Justice.
The lawyers termed the matter urgent given the Judiciary is about to embark on the process of recruiting Deputy Chief Justice.
They said if the orders are not granted, then there is a likelihood the unconstitutional criteria prescribed in the amendment will be used.
“The Chief Justice has publicly indicated that he intends to retire before he attains the retirement age and there is every possibility that the recruitment of the position of Chief Justice will be done this year,” LSK further said in its application.