The stalemate between the Judiciary and President Uhuru Kenyatta over new judges’ appointments has taken a new course, with calls for his jailing for defying court orders.
At the same time, Justices James Wakiaga, George Dulu and William Musyoka have dismissed the President’s plea that they should not hear the cases filed before them by Katiba Institute, Adrian Kamotho and Benjamin Gikenyi Magare.
The President’s lawyer Waweru Gatonye told the judges he had filed an appeal challenging their decision for him to participate in the cases.
“I am seeking a stay of the present proceedings and that application has been certified urgent. Parties were directed to file submissions, which have been done, and the position is the Court of Appeal could pronounce itself on the matter on the appeal. “I urge you, for good order, to adjourn the matter, and because of the prejudice to be suffered by the court finding that he should have been made a party but ordered he should continue,” Gatonye argued.
A total six cases have been filed, seeking to push the President to appoint the remaining six judicial officers – Justices Aggrey Muchelule, Joel Ngugi, George Odunga, and Weldon Korir. Registrar of the High Court Judith Omange, and Chief Magistrate Evans Makori were also left out of the list of appointees.
In court yesterday, Uhuru was accused of defying five orders, requiring him to file a reply in the cases.
Separately, Mr Kamotho, in his application before Justices Lydia Achode, James Makau, and Chacha Mwita, argue that the President was in contempt of the orders issued on February 6, last year.
“The honourable court be pleased to impose lawful sanctions, including, but not limited to an order of committal to jail, of the person currently holding the office of the President for blatant breach of judgment and persistent violation of the Constitution,” Kamotho said.
Yesterday, Attorney General Kihara Kariuki’s lawyer Emmanuel Bitta told Justices Wakiaga, Dulu and Musyoka that Kamotho was in different courts over the same issue.
Mr Bitta argued that he had also filed before the three judges an application to bypass the President.
However, the lawyer argued that the contempt case was a separate course of action from what was before them.
At the same time, the court heard that Uhuru had never gazetted Court of Appeal judge Mohamed Warsame as a member of the Judicial Service Commission (JSC).
Katiba’s lawyer Dudley Ochier argued that Justice Warsame had been sitting as a member of the commission out of court orders. “That is how powerful the court is. President Uhuru is a servant of the law, not a master,” he argued.
In his reply, the President argued that the court had not treated him fairly. His lawyer asserted that judges could not issue orders against him, as it had ruled that he was wrongly enjoined in the case.
“The first respondent (Uhuru) has not been treated with fairness. We have brought to this court two appellate court matters. No orders can be made against the first respondent in view of what had transpired.”
“Let me remind you, my lords, that you ruled that the President cannot be sued in the manner he was sued, and (that) he was wrongly enjoined into these proceedings. That takes me to this question; can orders be made against that person? In the present proceedings, you cannot make orders against the President who is wrongly joined,” Gatonye replied. The JSC and Chief Justice Martha Koome’s lawyer Isaac Wamasa told the court to dismiss the prayers seeking to compel her not to assign those who had been sworn into office until their colleagues are sworn in.
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