Court can’t revisit decision on 41 judges, says Kihara

Bernice Mbugua @BerniceMuhindi

Attorney General Kihara Kariuki now says the High Court cannot revisit the decision it gave concerning the appointment of 41 judges as it accomplished the purpose for which it was intended.

Kihara filed a preliminary objection to an application by lawyer Adrian Kamotho, saying the lawyer was seeking orders not granted in his petition.

“Upon issuing its final judgement, the court became functus officio and the court ought not to revisit,” says Deputy Chief State Counsel Emmanuel Bitta in court documents.

On February 6, a three-judge Bench ruled that President Uhuru Kenyatta’s decision of failing to appoint 41 judges recommended to him by Judicial Service Commission (JSC) was unconstitutional.

Justices Lydia Achode, James Makau and Chacha Mwita faulted President Uhuru Kenyatta’s delay in appointing the said judges, saying the timeline taken by the President was unreasonable.

According to the Bench, the President did not have powers to reconsider, review or decline to appoint judges recommended to him by JSC.

Kamotho, in a new petition, sought orders compelling the Attorney General to publish in the Kenya gazette the names of the persons recommended for appointment by the Judicial Service Commission (JSC) within three days.

 In the event of failure by the AG to publish, the names of the said persons be published by the JSC in any newspaper of nationwide circulation.

He also seeks an order compelling the Chief Registrar of the Judiciary to administer the oath or affirmation of office once the names of the judges are published.

Disregard law

Kamotho accuses the AG of utter disregard of the law and disobedience of court orders by failing and refusing to gazette the persons recommended as judges of superior courts.

The AG, however, says the court, having rendered its final judgment on February 6, the petition cannot be re-opened for further orders which in any case were sought  by Kamotho but had been declined.

“The inherent nature of the declaratory orders is that they have no coercive effect and as such cannot be enforced against the AG in the manner proposed by the decree-holder in his present petition,” stated Bitta in court documents.

Kamotho has, subsequently, asked the court to dismiss the Preliminary Objection saying the contention that the he is seeking to reopen the petition for further orders is fundamentally “a creature of the fertile imagination of the AG designed to cloud out the primary issues”.

According to the lawyer, the AG is yet to comply with the orders the court issued and yet did not apply for stay of the said judgement.

“Having failed to appoint the judges recommended by JSC, the Attorney General has not complied with the orders of the court and is blatantly in contempt,” claimed Kamotho.