The Judicial Service Commission (JSC) has filed a notice of appeal saying it is dissatisfied with Wednesday’s High Court ruling.
The High Court temporarily stopped the commission from conducting the interviews for judge of Supreme court.
Justices Anthony Mrima and Wilfrida Okwany gave the orders on Wednesday pending hearing of petitions filed by four petitioners.
“The constitutionality of the ongoing process has been challenged….. issues are novel,” the judges said.
The court said the ongoing interviews for the position of Chief Justice will go on but the commission is barred from making any deliberations once they conclude.
Queries over Prof. Mugenda
In one of the cases, a petitioner — Tolphin Nafula — argues that the Prof. Olive Mugenda was illegally elected as the interim vice chairperson for the JSC.
Justice Anthony Murima has referred the case to the acting CJ Philomena Mwilu seeking to have a bench constituted to hear the matter which he said raises substantial questions of law.
In the second petition, one Memba Ocharo wants the interviews adjourned until the nation is informed whether the remaining candidates have complied with Chapter 6 of the Constitution.
.”……the ongoing interviews for the person suitable for the office of the Chief Justice be stopped to avoid further wastage of public funds and open dereliction of the respondent’s constitutional duty and their conduct of interview that are clearly anathemic to constitutional principles and dictates,” court papers read.
The JSC has been named as a respondent in the case where the petitioner argues that it is increasingly becoming clear that the respondent failed to vet the candidates before shortlisting them for the interview.
He says the candidates thus far have admitted to not have submitted their wealth declaration forms and that of their spouses which is in breach of Chapter Six of the Constitution.
Candidates’ wealth not declared
“That the failure by the candidates to provide their wealth declaration forms and those of their spouses yet they were shortlisted for interview and have since been interviewed for the prestigious position of the Chief Justice of Kenya is not only a waste of the taxpayers’ money but is also a serious dereliction of the respondent’s constitutional and statutory duty,” court papers read.
Through lawyer Danstan Omari, the petitioner further argues that the interviews are ‘strangely’ being chaired by Prof. Mugenda who is only a commissioner at the JSC.
The petitioner says the Judiciary was left under the care of an able acting Chief Justice who should be taking the lead.
He says is not clear why the interviews are being chaired by Prof. Mugenda in open defiance and insubordination of the constitutional and statutory dictates which demand that the JSC’s affairs be either be chaired by the CJ and/or deputy.
So far, the commission has interviewed eight candidates for the CJ position.
They are Justice Said Juma Chitembwe, Prof. Patricia Mbote, Philip Murgor, Lawyer Fredrick Ngatia, Lady Justice Martha Koome, Justice Marete Njagi, Justice Matthews Nduma Nderi and Justice William Ouko.
The remaining two candidates — Prof. Moni Wekesa and Ms. Alice Yano — will wrap up the two-week interviews on Friday.
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