The recruitment of the new Auditor-General is likely to delay further after activist Okiya Omtatah, who challenged the process in court, filed an application seeking the presiding judge to recuse himself.
Justice Stephen Radido is expected to deliver his judgement on the hiring process on Friday.
But Mr Omtatah now wants the judge to disqualify himself from the case and for Chief Justice David Maraga to pick a three-judge bench to determine the petition.
Mr Omtatah filed the application on March 2 after it emerged that CJ Maraga had asked to see the file last week, just days before the ruling was to be delivered.
The case had already been argued and Justice Radido had set February 26 for his verdict. But when the parties appeared before him on the appointed day, he informed them that the CJ had called for the file.
He then set March 6 as the new date for the judgement.
However, Mr Omtatah, who has also written a protest letter to the CJ, said in the interests of fairness and justice, judge Radido had to recuse himself. He argued that the independence of individual judges, who are tasked with interpreting and applying the law in specific cases, is a very important part of this principle.
“Judicial independence requires that judges be insulated from pressure and influence, and be free to make impartial decisions based solely on fact and law,” he said.
The activist said the circumstances under which the file was taken to the Chief Justice remain obscure and susceptible to raising serious doubts on the judge’s independence in making a decision.
Mr Edward Ouko, the first holder of the office, was appointed in August 2011 for a non-renewable term of eight years, which ended in August 2019.
The selection panel led by the chairman of the Public Service Commission began the process of finding his replacement soon after but later announced that none of the 17 shortlisted candidates had met the criteria for the job.
PSC chairman Stephen Karogo, while rejecting the candidates, said they only met technical requirements including academic qualifications, but scored poorly in independence, diplomacy and tactfulness, which he said were key considerations.
But Mr Omtatah said the three considerations imposed by the panel cannot be used to bar candidates who meet the eligibility threshold set in law.
He argued that the law does not provide for a midway cancellation of a recruitment process and that there can be no re-advertisement until all the three names have been rejected by Parliament.
Justice Radido then barred the selection panel from re-advertising the post afresh, pending the determination of the case.
The botched initial recruitment process has created paralysis at the Kenya National Audit Office as none of Mr Ouko’s six deputies has a constitutional mandate to sign off audit reports for tabling in Parliament.
It has led to the failure of State institutions including Central Bank from publishing their audited financial results for the 2018/2019.
Mr Omtatah’s application will be heard on Thursday morning.
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