High Court dismisses President’s objection to Katiba Institute suit


The High Court has dismissed the President’s objection to the Katiba Institute suit challenging his failure to appoint 40 judges.

A statement from the group said the court ruled that President Uhuru Kenyatta can be sued personally for failing to appoint the judges as recommended by the Judicial Service Commission (JSC).

The President had contended that he has absolute immunity from all legal processes but Katiba Institute argued that he can be sued.

According to a previous report by the Daily Nation, the group argued that the anticipated selective appointment of judges would undermine the functions and powers of the Judicial Service Commission and the functioning of the Judiciary.

They claimed that it would be an improper extension of the role of the Executive and create a constitutional crisis, the newspaper reported.

“Should the Executive appoint only a subset of the judges-in-waiting, it would constitute an improper and unconstitutional extension of the role of the Executive,” said lawyer Dudley Ochiel as quoted by the Nation.

The lobby alleged that the President’s refusal to appoint the 41 judges has significant effects on the right to fair hearing, right of access to and administration of justice, and right to fair trial.

In June this year, Chief Justice David Maraga said the President was responsible for the operational crisis witnessed at the Judiciary.

According to the CJ, the refusal to appoint 41 judges was in outright disobedience of two court orders and the Constitution.

Maraga cited serious shortage of judges in various courts, saying hearing of some cases would have to be pushed to 2022 due to the backlog.

“It is important to clearly and categorically state that this shortage of judges and the near paralysis of court operations has been caused by the President. The President has persisted in his refusal despite orders in two cases requiring him to swear in those judges within 14 days,” he said during a Press briefing.

He cited the situation at the Environment and Land Court saying the department had only 31 judges countrywide yet as of March 31 this year, it had a backlog of 16, 457 cases.

“If you file a land case in the Environment and Land Court (ELC) at Milimani today, the earliest your case will be heard is in 2022. This is because we have a total of 31 ELC judges in the country against a case backlog of 16, 457 as of March 31, 2020,” said Maraga.

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