Forty one judges appointed in July 2018 to join the appellate, land and labour courts will know their fate on February 6, 2020, when a ruling will be made on whether to compel the President to have them sworn-in.
The Judicial Service Commission (JSC), through senior counsel Paul Muite, told a three-judge bench on Monday that “President Uhuru Kenyatta has no alternative but to discharge his constitutional mandate”.
Mr Muite told High Court judges Lydia Achode, Enoch Chacha Mwita and James Makau that the Constitution requires the President to nominate and swear-in persons recommended to him by the JSC for appointment.
The judges heard that on July 22, JSC chairman, Supreme Court President and Chief Justice David Maraga presented the names of 11 judges appointed to the Court of Appeal, 20 to the Environment and Lands Court and 10 to the Labour Relations Court.
Mr Muite said the President, however, shelved the appointments after receiving intelligence reports about some of the nominees.
He said the National Intelligence Service (NIS) volunteered information bordering on corruption about some of the nominees.
“The Registrar of the Judiciary, who is also the Secretary to the JSC, wrote to the director of the NIS seeking clearance on whether he had any adverse information about any of the 41 selected persons,” he said.
He noted that nothing was stated against the appointees and that that had the NIS volunteered any information about those affected, the JSC would have asked them to clear their names.
Mr Muite further said the Attorney-General, who participated in the process of interviewing the applicants, failed in his duty in summoning the NIS director to get secret information about some of the judges.
He told the court that the judges have been left wondering what they did to deserve such treatment, given the matter is of great public interest and that they need to clear their names.
The lawyer also noted that previous decisions of a five-judge bench compelled the President to execute his constitutional mandate by appointing and swearing-in the judges.
“The decision not to appoint and swear-in the nominated persons has caused a constitutional crisis in the Judiciary, which needs to be resolved soon. The JSC, not the NIS, has the constitutional mandate to appoint judges.”
Mr Muite , the Law Society of Kenya (LSK) and lawyer Adrian Kamotho urged the judges to allow a petition seeking to compel President Kenyatta to nominate and swear-in the 41 judges.
In another petition, the International Economic Law Centre and Mr David Kariuki Ngari support the President in declining to appoint and swear-in the nominees.
They say that “if there are corruption allegations, they must be cleared first”.
The petitioners accuse the JSC of failing to carry out public participation and due diligence before appointing the 41 persons.