Why LSK is mounting pressure for Uhuru to appoint 41 judges

LSK President Nelson Havi

What you need to know:

  • According to the LSK, nominated lawyers from the private practice sector are in an awkward position as they don’t know whether they are appearing in courts as judges or private advocates.
  • Another concern in the legal fraternity is the fate of decisions rendered by the 10 High Court judges that the JSC recommended for promotion to the Court of Appeal.
  • Mr Havi spoke days after three Western diplomats raised concerns about the stalemate caused by differences between the Executive and the Judiciary, led by President Uhuru Kenyatta and Chief Justice David Maraga, respectively.

Pressure is mounting for President Uhuru Kenyatta to appoint the 41 judges proposed by the Judicial Service Commission (JSC) a year ago, with the Law Society of Kenya (LSK) saying the delay has caused confusion in the legal practice.

According to the LSK, nominated lawyers from the private practice sector are in an awkward position as they don’t know whether they are appearing in courts as judges or private advocates.

LSK President Nelson Havi Sunday said that among the 41 nominees are 27 of the society’s active members whose  livelihood has suffered since July last year when the JSC recommended their appointment.

EARNINGS

Mr Havi said the 27 nominated judges are in a predicament as they cannot reasonably and justifiably continue practising law and earning fees.

"On the other hand, their counterparts serving in the judiciary as magistrates and judges are covered in so far as their livelihood is concerned. Consideration has to be made for the 27 nominees who appear to have been left in the purgatory of the transition from the bar to the bench," said Mr Havi.

Among the 27 lawyers, one was recommended to the Court to Appeal, 16 to the Environment and Lands Court and 10 to the Employment and Labour Relations court.

Another concern in the legal fraternity is the fate of decisions rendered by the 10 High Court judges the JSC recommended for promotion to the Court of Appeal but who have continued to serve in their  former posts.

Their decisions may end up being challenged at the Court of Appeal.

ENVOYS CONCERNED

Mr Havi spoke days after three Western diplomats raised concerns about the stalemate caused by differences between the Executive and the Judiciary, led by President Uhuru Kenyatta and Chief Justice David Maraga, respectively.

British High Commissioner Jane Marriott, US Ambassador Kyle McCarter and European Union Ambassador Simon Mordue called on the Executive and the Judiciary to work independently but cooperatively.

Mr Havi said the question of the role of the President in the appointments was settled through a High Court ruling in March.

A three-judge bench said the President's failure to allow the appointments was in violation of the Constitution and the Judicial Service Act. It was also held that the President has no mandate to review, reconsider or decline to appoint those recommended by the JSC.

EXPLUSIONS

According to Mr Havi, a resolution to the stalemate now requires more than a court-based solution.

"As LSK, we have taken various measures towards ending the stalemate surrounding the swearing-in of all the 41 judges. The last of the approaches was the motion dated June 12, 2020, for the expulsion of  Attorney-General Kihara Kariuki and Solicitor-General Kennedy Ogeto (from the society).”

However, the expulsion may not come to pass as the High Court issued an order restraining the society from deliberating on the matter during its annual general meeting on Thursday.

The LSK has since moved to the Court of Appeal seeking a reprieve on the intended censure of the Attorney-General and Solicitor-General.

Mr Havi said said the hope is that the appellate court will unlocks the matter before the AGM.