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Bernice Mbugua @BerniceMuhindi

A three-judge-bench will on October 21 rule on  whether to compel President Uhuru Kenyatta to swear in the rejected six judges out of the 40 proposed by the Judicial Service Commission (JSC).

Justices William Musyoka, James Wakiaga and George Dulu yesterday heard the petition filed by Katiba Institute challenging the refusal by the President to swear in all the judges as recommended by JSC.

The application was however opposed by the President, Attorney General (AG), the Chief Justice (CJ) and JSC.

The lobby group through lawyer Dudley Ochiel have also challenged the AG’s conduct over  the matter saying he was being dishonest.

Ceremonial powers

The three-judge-bench was asked to declare that the six judges rejected by the President be deemed to be appointed to their offices or in alternative JSC and the CJ swear them in.

“Where the President refuses to exercise ceremonial powers, the court can order someone else to do that,” lawyer Ochiel told the court.

Lawyer Isaac Wamaasa who represented the CJ and the JSC, however, opposed the application arguing the swearing in of judges is a preserve of the President.

The judges posed a question to the lawyer on what happens when the President refuses to swear in the Judges recommended by JSC which he represents.

“Unfortunately the Constitution does not envisage the situation where the President refuses to swear in judges, it is his duty and has no option,” he answered. 

The CJ and JSC asked the court to dismiss the application by Katiba institute.

The lobby group argued that the President has no mandate upon the recommendation by JSC to refuse to appoint the judges.

“The President is constitutionally bound by the recommendation made by JSC. He left out six judges, that kind of conduct is unconstitutional,” Ochiel argued.

The lawyer also argued that the AG’s conduct was not consistent with the Constitution, noting that he was a member of JSC.

“The AG sat through each of the interviews and deliberated on the decision on who should be recommended.

He earned allowances from taxpayers and he did not raise any question on any of the judges.

He then cannot turn around and begin to question the recommendation he had made on JSC, that is being dishonest,” argued Ochiel.

The AG through State counsel Emmanuel Bitta opposed the application .

“The actions taken were taken in official capacity. The AG has no powers to appoint judges to the office..

You have heard the hearsay evidence, Katiba Institute does not sit in the JSC and has not furnished any evidence on who said what,” claimed Bitta.

Senior Counsel Waweru Gatonye for the President argued that the President had been wrongly enjoined in the proceedings.

“The President was wrongly enjoined and the court cannot make orders against him if he is wrongly joined. We ask the court to dismiss this application,” he told the judges.