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Bernice Mbugua @BerniceMuhindi

The High Court has barred any investigation, prosecution or consideration of any petition for removal of the four judges and two magistrates, who were not appointed by President Uhuru Kenyatta.

Justice James Makau also prohibited the making public of the report to Judicial Service Commission by the President on the refusal to appoint the six nominees or any connected report that is injurious to the integrity of the judicial officers.

The Judicial Service Commission (JSC) was also barred from interfering with the judicial functions of the six based on the alleged report sent by the President.

The judge gave the orders in a petition filed by city lawyer Bernard Okello, who has named the Attorney General as a respondent in the suit.

JSC, the Chief Justice and Law Society of Kenya have been named as interested parties.

“I am satisfied that the petitioner has demonstrated a prima facie case with a likelihood of success… if interim orders are not issued, he will be prejudiced.

I find no prejudice will be suffered by the respondent (AG),” ruled the judge.

The judges who the President declined to appoint include George Odunga, Joel Ngugi, Weldon Korir and Aggrey Muchelule. Also left out were magistrates Evans Kiago and Judith Omange Cheruiyot.

Okello argues that appointing 34 judges out of the 41 recommended by JSC and failure to appoint the six is a blatant disregard to the Constitution.

He argues that the President violated the Constitution by denying citizens’ access to justice by failing to appoint all the judges recommended by JSC.

He says by handpicking which judge to appoint, the President denied other qualified persons an opportunity to be appointed, which is a discrimination against the six judges.

Integrity issues

ODM leader Raila Odinga last week challenged President Uhuru to make public the reasons for his refusal to appoint the judges as recommended to him by JSC.

“I challenge the Executive arm of government, to share with the Judiciary and the public the concerns and evidence that led to the rejection of the six,” Raila had said in a statement.

But the President, while addressing a delegation from the Ukambani region early this week, said he had shared the report that raised integrity issues against the six judicial officers with Raila, Chief Justice Martha Koome and her predecessor, retired Justice David Maraga.

The President maintained that he would not be bullied into “rubber-stamping” the appointment of the six judicial officers when question marks existed over their integrity. 

In another petition challenging the President’s action regarding the judges and which was filed by a Nakuru doctor, Justice Makau directed the matter to be placed before the Chief Justice for empanelment of a bench to hear the matter.

Personal capacity

The judge also struck out the names of CJ Koome and Attorney General Paul Kihara, who had been sued in their personal capacity and the 34 judges appointed by the President.

Petition by Dr Magare Benjamin seeks to compel the Chief Registrar of the Judiciary alongside the Chief Justice to swear in the six judges.

The medic wants the six to assume their respective positions, which they applied for and had been recommended not later than 14 days.

Dr Magare, a Trauma and General Surgeon at Nakuru Level Five Hospital claimed that the President’s action, if left unabated, the independence of the Judiciary, which Kenyans hold dearly will be lost and eroded.

“The judges and magistrates have been discriminated against contrary to article 27 of the Constitution,” he argues in court documents.

He contends it is important to maintain constitutionalism, rule of law, law and order, good governance, non-discrimination and protecting the Constitution.