The High Court has faulted President Uhuru Kenyatta for delaying to appoint 41 judges who were set for promotion.
A three-judge bench comprising Justices Lydia Achode, James Makau and Enoch Chacha Mwita has ruled that the President has no mandate to review, reconsider or decline to appoint those recommended for promotion by the Judicial Service Commission.
And, since there had been adverse reports that the delay in appointing the judges to serve in their new posts was as a result of being flagged by the National Intelligence Service over integrity issues, the judges faulted the NIS for failing to disclose that information.
According to the judges, information on integrity of judges cannot be considered as classified data which poses a threat to the security of the nation.
With regard to the timelines within which the President is expected to appoint judges after being recommended by the JSC, the bench ruled that the appointments should be immediate. They said that 14 days would be an appropriate time.
They declared that President Kenyatta is bound by the recommendations made by JSC on persons to be appointed and the failure to make the appointments is a violation of the Constitution as well as the JSC Act.
“We find and hold that the delay is unreasonable and unconstitutional,” the judges ruled.
The judgment was issued in a case in which city lawyer Adrian Kamotho Njenga protested against the delay in the appointment of judges who have qualified for promotion.
Mr Njenga sued the Attorney-General while JSC and Chief Justice David Maraga were listed as interested parties.
While the case was still pending, he had requested the court to allow the relevant appointing authority to execute its duties despite challenging the delay.
While pointing fingers at JSC and the President, he had claimed that the law stipulates that Mr Kenyatta is required to appoint 10 High Court judges and one lawyer out of the 35 who were interviewed and were recommended to be promoted to the Appellate Court.
Another 20 were recommended for appointment as Environment and Lands Court judges and 10 for the Employment and Labour Relations Court.
Nine judges who were all seeking to be promoted to serve in the Appellate Court had been named in correspondences between JSC and the NIS regarding their background checks.
Also, three lawyers were marked by the NIS in the list handed over to JSC in a letter dated July 5 from Major-General Philip Kameru addressed to the Judiciary’s Chief Registrar Anne Amadi.
The judges named were Justices Mumbi Ngugi, Aggrey Muchelule, Maureen Onyango, Hedwig Ong’udi, Joseph Sergon, Joel Ngugi, Luka Kimaru, Francis Tuiyott and Florence Muchemi.
Mr Elijah Njagi Ireri, Mr Moses Kurgat Kipng'etich and Mr Musyoki Benjamin Mwikya are the three lawyers.