Chief Justice Willy Mutunga has bowed to pressure from lawyers and rescinded his decision to appoint a judge who has not been vetted to handle cases challenging the mandate of the Judges and Magistrates Vetting Board.
Dr Mutunga removed High Court Judge Mohammed Warsame, who had been rejected by the Law Society of Kenya (LSK) and the vetting board.
The two bodies had argued that Justice Warsame was not suitable to handle the case because he had not been vetted.
The judge was scheduled to appear before the board on October 16. The lawyers asked the judge to recuse himself because they feared he would not be fair.
The lawyers representing the board and LSK were asked to file formal applications seeking the disqualification of Justice Warsame.
Dr Mutunga has also gone by the recommendations of the three judges to expand the bench to five.
The two cases will be mentioned on Tuesday. The cases filed by a lobby based in Eldoret and another by High Court Judge Jeanne Gacheche, who was declared unsuitable to continue serving in the Judiciary, will now be handled by five judges.
In a letter addressed to the Registrar in charge of the Judicial Review Division, the CJ named High Court judges David Majanja, Jonathan Havelock, Pauline Nyamweya, Weldon Korir and Eric Ogolla to handle the matter. He had initially appointed justices Warsame, George Odunga and George Kimondo.
On September 25, the three judges issued an interim order suspending the vetting after an application by the Eldoret-based Centre for Human Rights and Democracy.
The case was filed jointly with two other petitioners, Richard Omanyala and Bishop Francis Oziova.
The three moved to court to challenge the removal of Supreme Court Judge Mohammed Ibrahim and Court of Appeal Judge Roselyn Nambuye from the bench.
The vetting board ruled that the two were unsuitable to continue serving in the judiciary mainly for delaying judgments and rulings, but the decisions were nullified when the two applied for review of the decision.
The board announced it would go through a second round of vetting with a new panel, a decision that was not received well by the lobby and the two petitioners.
Their lawyers, John Khaminwa, Katwa Kigen and Paul Gicheru, argued that the court ought to stop the vetting until the issues raised are determined.
They termed the decision unlawful because the two have already been subjected to the process and that there is no provision in the Vetting Act for a second round of vetting.
They also challenge the legal mandate of the board, which they argue was unprocedurally extended by Parliament.
The petitioners contend that any proceedings determined by the board after the expiry of their mandate is a nullity because there is no corresponding extension of the term of the board members.
The vetting of judges and magistrates, which is scheduled to end next year, will be delayed by the cases.
In a press statement last Thursday, the chairman of the vetting board, Mr Sharad Rao, said they expected to complete the vetting of Court of Appeal and High Court judges this month, but the cases would disrupt their programme.
The board started its work on February 23, 2012 and has vetted 22 judges. The findings on the suitability of 12 judges who have been interviewed is yet to be made public while 18 judges have not appeared before the panel.