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A three-judge Bench will hear a case challenging President Uhuru Kenyatta’s refusal to appoint six judges recommended by the Judicial Service Commission (JSC).

Chief Justice Martha Koome yesterday appointed justices James Wakiaga, William Musyoka and George Dulu to hear the case.

The case was filed by Nairobi lawyer Bernard Okello who accuses the President of violating the Constitution.

“Uhuru has discriminated against the six judges by refusing to appoint them. All citizens have the right to equal treatment, including the right to equal opportunities,” Okello argues.

He states that Article 166 of the Constitution provides that the “President shall appoint all other judges in accordance with recommendation of the JSC.”

Cases consolidated

They include High Court judges Joel Ngugi, George Odunga, Aggrey Muchelule and Weldon Korir, who JSC had recommended they be promoted to the Court of Appeal.

Also left out is the Registrar of the High Court Judith Omange and Chief Magistrate Evans Makori who had been nominated to the Environment and Lands Court. A similar case has been filed by Nakuru doctor Magare Gikenyi.

The three-judge bench will now hear the cases which have been consolidated.

On June 16, 2021, Justice James Makau of the High Court Constitutional and Human Rights division temporarily stopped any investigation or prosecution of six judges adversely mentioned in a confidential report forwarded to the President. Justice Makau further ordered that there shall be no recommendation for their removal or interference with their functions until the case is heard and determined.

The judge also prohibited the State from making public the report that reportedly informed Uhuru’s refusal to appoint them.

Uhuru’s decision not to appoint the six has elicited criticism from, among others, the Law Society of Kenya, CJ Koome, her predecessors David Maraga and Willy Mutunga and politicians.

But the President maintains his decision was based on a confidential report which raised integrity issues about the judicial officers.

He has previously stated that he has shared the contents of the report with Koome, her predecessor Maraga as well as opposition leader Raila Odinga.