High Court judges who were sworn in by President Kenyatta on Friday may have to conclude some of the cases they were hearing before taking up their new positions at the Court of Appeal.
The stipulation applies to sensitive matters that were before the courts, those whose proceedings were almost complete, or even cases that were awaiting judgments.
This is according to lawyers and legal experts who spoke to the Sunday Nation.
A case in point is the murder of human rights lawyer Willy Kimani and taxi driver Joseph Muiruri, where most witnesses had testified and only two were left.
The case is before Justice Jessie Lessit, who was among the High Court judges who were promoted to the Court of Appeal and were sworn in on Friday.
At least seven judges of the High Court, were promoted to the Court of Appeal, with the appointment of six others quashed by the President over integrity issues.
“The standard practice has always been that once a judge is promoted, then all the cases that they were presiding over are re-assigned to other judges. But then you have matters that had reached an advanced stage and a new judge coming in may not be well versed with the nature of the case, the judge has to complete the case before moving,” said Mr Adrian Kamotho, a lawyer and advocate of the High Court.
Lawyer Lempaa Suiyanka said that re-assigning some of these cases could prove problematic given their complex nature, hence the need to have a judge complete the proceedings and issue a judgment before taking up a new role.
“Often, cases are usually re-assigned by the principal judges,as has been the practice. And in some cases, the parties involved are asked to decide on the way forward before a decision is made,” said Mr Steve Ogolla, a lawyer in Nairobi.
Mr Ogolla said that most matters will be assigned to new judges and only those that under special circumstances will be considered.
The current situation on cases is a situation that mirrors the one faced by Justice Fred Ochieng in 2010.
Judge Ochieng took over the case of police constable Edward Kirui, who was accused of killing two demonstrators in Kisumu, from Justice Onesmus Mutungi, who retired before concluding the matter.
And in 2013, Supreme Court Judge Mohammed Ibrahim and Roselyne Nambuye of the Court of Appeal in 2013 were also faced with the same scenarios, after the Judges and Magistrate Board recommended their removal from office over delayed judgments and ruling, before they appealed the decisions.
Justice Ibrahim had been accused of failing to determine at least 170 plus cases while acting as a judge in Mombasa, while Justice Nambuye had on the other hand, been accused of delaying rulings during her time in Kitale.
They both appealed the decisions and won.