'Introduction
1. The Petition dated 19th July 2022 is supported by the Petitioner’s affidavit of similar date and a further affidavit dated 17th November 2022.
2. The Petition challenges the 1st Respondent’s recruitment of the Interested Parties to be Judges of the Court of Appeal on the basis that the 1st Respondent has been carrying out recruitment process of the Judges of the Court of Appeal in a manner that discriminates against the Judges of the Employment and Labour Relations Court as well as the Environment and Land Court thus rendering the process unlawful and unconstitutional.
3. The Petitioner further averred that the 1st Respondent’s discriminatory actions against Judges in the Special Courts also extend to designation of the Judges to be the Presiding Judges of the Superior Courts.
4. Consequently, the Petitioner argues that 1st Respondent’s actions are unconstitutional and violate Article 10, 27, 41(a), 47(1), 73, 75 and 232 of the Constitution. The Petitioner thus seeks the following reliefs against the Respondents:
i. A declaration that the JSC''s impugned recruitment of the seven (7) CA judges is irregular, unfair, unlawful and unconstitutional and, therefore, invalid, null and void ab initio.
ii. A declaration that, under the Constitution, the JSC is bound by law to be transparent and accountable, including by holding interviews for candidates to be appointed as judges in the open and publishing and publicizing the score cards.
iii. A declaration that the JSC should take steps to ensure there is continuous representation in the CA of judges appointed from the two specialist courts established under Article 162(2) of the Constitution.
iv. An order quashing the recruitment, appointment, and swearing into office of the seven (7) CA judges.
v. An order compelling the Respondents to pay to the Petitioner''s costs of this suit.
vi. Any other relief this Court may deem just to grant.
Petitioner’s Case
5. The Petitioner avers that the 1st Respondent advertised for 6 vacancies for Court of Appeal Judges. 63 candidates applied and out of this 31 were shortlisted for interviews. Subsequently, 7 candidates were recommended for appointment by the President, being the Interested Parties herein. The Interested Parties were thereafter appointed by the President vide a Gazette Notice No.8665 dated 19th July 2022.
6. According to the Petitioner, the Constitution does not envisage a scenario where the 1st Respondent can appoint 7 people to fill 6 vacancies. In his view, the 7th slot was deliberately hidden from the public to achieve their improper motives while advancing corrupt practices. The Petitioner asserts that this is a blatant display of impunity by the 1st Respondent which is unconstitutional and casts doubt on the recruitment process.
7. The Petitioner further contends that despite 4 Employment and Labour Relations Court Judges and 2 Environment and Land Court being shortlisted, none was appointed in the end. He claims that this has become the 1st Respondent’s norm, where only High Court Judges are appointed to the exclusion of the Judges in the Special Courts. He asserts that this action which runs a foul the spirit of Article 162(2) of the Constitution, curtails the enrichment of diversity in the Court of Appeal from the expertise of Judges from the Special Courts.
8. Additionally, he accuses the 1st Respondent of failing to uphold the principles of transparency and accountability in line with Article 10 of the Constitution. This is since, the 1st Respondent failed to disclose the scores of each candidate. He adds that the interviews were not done openly and thus theorizes that the 6 appointed High Court Judges were exclusively appointed based on the Court they serve in.
9. The Petitioner further alleges that Judges from the Special Courts are equally not appointed as Presiding Judges of Court Stations like their counterparts even where they head court stations in different parts of the country. Moreover, that they have never been gazetted by the Salaries and Remuneration Commission (SRC) for extra remuneration as Presiding Judges in that case.
10. Considering this, the Petitioner argues that the 1st Respondent has discriminated and marginalized Judges from the Special Courts as though they are less qualified compared to High Court Judges. This action is alleged to have unlawfully stunted their career progression and violated their rights to equality and freedom from discrimination, human dignity, fair labour practices and a fair administrative action.
11. Accordingly, the Petitioner brings this Petition against the 1st Respondent for its failure to uphold a transparent and accountable recruitment process in relation to the Court of Appeal Judges and further discriminating against Judges in the Special Courts in these recruitments and their role. These actions are thus adjudged to be unconstitutional and in violation of Articles 10, 27, 41(a), 47(1), 73, 75 and 232 of the Constitution.
1st Respondents’ Case
12. In response, the 1st Respondent filed a Replying Affidavit by the then Chief Registrar, Anne Amadi sworn on 14th February 2023.
13. The Chief Registrar swore that the instant Petition is a move by the Petitioner to use this Court to compromise the 1st Respondent’s constitutional mandate as envisaged under Article 172(1) (a) of the Constitution as read with Section 30 and the First Schedule of the Judicial Service Act.
14. She stated that at the time of making the vacancy announcement, the Court of Appeal faced a severe deficit of Judges, in that it had 20 Judges against the statutory capacity of 30 Judges. In addition, out of the 20 Judges, one is a member of the 1st Respondent and 1 serves in the East African Court of Justice’s Appeal Chamber. Further, she stated that in 2022, 2 Judges retired. At that point, the total number of active Judges in the Court of Appeal was 15, for the 6 Country stations.
15. She states that the Court of Appeal Judges shortfall had a negative impact on dispensation of justice in that it gave rise to a workload of 1562 cases per a single Judge in a year and also increased the time of an appeal to an average of 7 years instead of 1 year. She also notes that some stations like Nyeri did not have sitting Judges while plans to operationalize Nakuru and Eldoret stations were halted. In the end, it thus necessary that recruitment of more Judges be done.
16. On 14th March 2022 the 1st Respondent published an advertisement for recruitment of 6 Judges. The advertisement attracted 68 applicants. At its meeting dated 26th and 27th April 2022, the 1st Respondent reviewed all the applications and shortlisted 31 candidates.
17. These candidates were then vetted by the various bodies such as Ethics and Anti-Corruption Commission. Furthermore, the interviews were broadcasted live on the 1st Respondent’s social media pages and process was also open to the media and the public.
18. Additionally, members of the public were invited to give their views and any information of interest concerning the candidates. She avers that the 1st Respondent received several complaints and information from the public including the vetting agencies. These were processed and served upon the respective candidates so as to provide their responses. These comments were also considered during the interviews and overall nomination of the best candidates. The 1st Respondent in addition organized forums with stakeholders from various sectors on 23rd June 2022.
19. She depones that upon conclusion of the process, the 1st Respondent selected the 7 Interested Parties. The decision to select 7 candidates is said to have been informed by the retirements of Hon. Lady Justice Roseline Nambuye on 21st May 2022 during the pendency of the recruitment process. In this regard, she states that the 1st Respondent exercised its powers under Paragraph 20(2) Part VII of the First Schedule of the Judicial Service Act, 2011. This decision was further guided by the need to address gender and regional balance and minority interest in the Court of Appeal. She posits that it would have been a waste of public funds to commence another recruitment exercise during the pendency of another to fill one vacancy.
20. She as well asserts that the 1st Respondent’s actions were guided by Article 10, 172 and 259 of the Constitution and provisions of the First Schedule of the Judicial Service Act. She states thus that the 1st Respondent’s actions in the recruitment process were constitutional.
21. It is averred that the Petitioner has not demonstrated the prejudice occasioned to him by the 1st Respondent’s decision to nominate 7 candidates. Likewise, it is noted that the Petitioner did not provide any evidence to support the claim of discrimination of the Special Courts Judges.
22. That said, she states that there is no legal requirement that Judges in these Courts should have automatic slots in the Court of Appeal. Instead, the law obligates the 1st Respondent to select the best candidates as guided by their professional competence, written and oral communication skills, integrity, fairness, good Judgement among others. She notes that the 1st Respondent is further guided by merit, competitiveness, transparency and promotion of gender equality. She informs that the law does not obligate the 1st Respondent to publicize the scores of every candidate and that the same would be a violation of the right to privacy of the candidates.
23. Furthermore, she depones that the determination of allowances payable to Judges and other State Officers solely lies with the SRC and thus the issue of special duty allowance payable to Presiding Judges and Heads of Station ought to be directed to it.
24. Nonetheless, it was highlighted that no evidence had been adduced to support the claim that Judges in the Special Courts are denied special duty allowance.
2nd Respondent’s Case
25. In reaction to the Petitioner’s case, the 2nd Respondent filed grounds of opposition dated 27th July 2022 on the basis that:
i. The High Court lacks the jurisdiction to issue orders of prohibition, prohibiting judges of the Court of Appeal who rank above the Court in the hierarchy of courts, from discharging constitutional duties.
ii. Issuance of orders of prohibition against Judges of the Court of Appeal from performing their constitutional functions would constitute an impermissible infringement on the independence of the Judiciary contrary to express provisions of the Constitution.
iii. The gravamen of Gazette Notice No. 8665 of 19th July 2022 has already been given effect to and the same is not amenable to be affected in any way by a conservatory order.
iv. The Interested Parties tenure in office as Judges of the Court of Appeal is constitutionally insulated and may only be interfered with in the manner prescribed under Article 168 of the Constitution; therefore, beyond the purview of the jurisdiction of the High Court.
v. The Application is misconceived and bad in law.
Interested Parties Case
26. These Parties responses and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
27. The Petitioner filed submissions dated 29th February 2024 and underscored the issues for determination as: whether the Petitioner has locus standi to institute and prosecute these proceedings; whether this Court has jurisdiction over this motion; whether the JSC’s recruitment of the seven (7) judges to fill six (6) slots was a nullity; whether the JSC has discriminated against ELRC and ELC judges in appointments to the CoA and as Presiding Judges, and whether the JSC was not transparent and accountable in the appointment of Judges.
28. The Petitioner submitted that he has the requisite locus standi to file this Petition in public interest as it concerns constitutional issues surrounding the appointment of the Interested Parties. To buttress this point reliance was placed in Article 22 and 258 of the Constitution. In addition, the case of John Harun Mwau and 3 Others vs. Attorney General and 2 Others [2012] eKLR where it was held that:
“The intent of Articles 22 and 23 of the Constitution is that persons should have free and unhindered access to this court for the enforcement of their fundamental rights and freedoms. Similarly, Article 258 allows any person to institute proceedings claiming the Constitution has been violated or is threatened.”
29. Like dependence was placed on John Kipng''eno Koech & 2 others v Nakuru County Assembly & 5 others [2013] eKLR, Michael Osundwa Sakwa vs Chief Justice and President of the Supreme Court of Kenya & another (2016) eKLR and Kiluwa Limited & Another vs. Commissioner of Lands & 3 others, 2015 eKLR.
30. The Petitioner in the second issue first pointed out that this Petition specifically revolves around the question whether the 1st Respondent impugned actions during the recruitment process were unconstitutional thus null and void, not removal of the Interested Parties from office. On this premise, Counsel submitted that this Court has jurisdiction to answer this question in line with its mandate under Article 23 and 165(3) of the Constitution. Reliance was placed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where it was held that:
“We disagree with this approach and are not prepared to hold as urged by the appellant as such an approach would pose a recharacterization risk in similar forms of constitutional litigation. In our considered opinion, the petition before the High Court was not instituted as a removal procedure nor as a complaint against the appellant in his capacity as a State Officer. The petition was a challenge to the constitutionality of the process and manner of the appellant’s appointment. This Court takes the view therefore that it is not the outcome of litigation that is determinative of its nature, but its substance at the time of seizure and proceedings. Viewed thus, an order setting aside the appointment of the appellant flows from a judicial finding of the unconstitutionality of the process and manner of appointment, not as a consequence of a removal procedure.”
31. Additional reliance was placed in Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & Another (2011) eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & another (2014) eKLR.
32. Turning to the third issue, the Petitioner stated that the 1st Respondent was under the obligation to follow the law in the appointment of the Interested Parties. He pointed out that the 1st Respondent had not denied it advertised for 6 posts but appointed 7 candidates.
33. The Petitioner reasoned that the retirement of Justice Nambuye was not unexpected as this was information within its knowledge well in advance. The Petitioner argued that the manner in which this was even done was contrary to Paragraph 3(1) and (2) of the First Schedule in the Judicial Service Act which directs that a vacancy in the office of a Judge must be notified in the Gazette and circulate the same on its website, the Law Society of Kenya and other legal associations. Thereafter invite qualified person to apply for the position. The Petitioner argues that the 1st Respondent did not adhere to this provision thus violated mandatory procedure.
34. The Petitioner contended that in carrying out its duties, the 1st Respondent is obligated to be transparent, accountable and exercise other principles of good governance. Further, that any action by the Respondents pertaining the failure to apply the law on the recruitment of judges, comes under the ambit of Article 47 of the Constitution. Considering this, the Petitioner argued that the appointment of the Interested Parties to fill the six advertised slots was unconstitutional. He reasoned that the 6 candidates’ appointment could only have been saved if the 1st Respondent disclosed who it had appointed to fill the 7th slot.
35. Reliance was placed in Republic vs. Kenya National Examination Council, Miscellaneous Civil Application No. 328 of 2015 where it was held that:
“That the Court can interfere where there is improper exercise of discretion is now trite. As was held by Warsame, J (as he then was) in Re: Kisumu Muslim Association Kisumu HCMISC. Application No. 280 of 2003, where an officer is exercising statutory power he must direct himself properly in law and procedure and must consider all matters which are relevant and avoid extraneous matters. The learned Judge further held that the High Court has powers to keep the administrative excess on check and supervise public bodies through the control and restrain abuse of powers. Concerning irrelevant considerations, where a body takes account of irrelevant considerations, any decision arrived at becomes unlawful. Unlawful behaviour might be constituted by
(i) an outright refusal to consider the relevant matter;
(ii) a misdirection on a point of law;
(iii) taking into account some wholly irrelevant or extraneous consideration...”
36. Comparable reliance was placed in Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300, Republic vs. Kenya Power & Lighting Co. Ltd. & Another (2013) eKLR, Republic vs. National Police Service Commission exparte Daniel Chacha (2016) eKLR, Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, and Christopher Ndarathi Murungaru v Kenya Anti-Corruption Commission & another [2006] eKLR.
37. On the fourth issue, the Petitioner maintained that the 1st Respondent in making the appointments had discriminated against the Judges of the Special Courts. Additionally, that these Judges are also discriminated when it comes to holding the position of Presiding Judges. Reiterating his averments, he argued that 1st Respondent had not discharged its burden of proof that there was no discrimination in terms of Section 5(7) of the Employment Act.
38. On the fifth issue, the Petitioner submitted that the inevitable conclusion in the circumstances of this case is that the 1st Respondent was not transparent and accountable in making the appointments. In light of this, he urged the Court to issue the appropriate relief. Reliance was placed in Law Society of Kenya vs. Attorney General & another; Mohamed Abdulahi Warsame & another (Interested Parties) [2019] eKLR where it was held that:
“Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case, the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights.”
39. Like dependence was placed in Hoffmann vs. South African Airways (CCT17/00) [2000] ZACC 17.
1st Respondent’s Submissions
40. Muma Kanjama Advocates for the 1st Respondent filed submissions dated 28th October 2024 where the key issues were highlighted as: whether the appointment of the Interested Parties was a product of a constitutional and lawful process, whether the appointment process for Judges of the Court of Appeal discriminates against Special Court Judges, whether the 1st Respondent should retrospectively pay Presiding Judges allowances to Special Court Judges and whether the 1st Respondent is mandated to publish the score cards of the candidates.
41. Counsel submitted that the appointment of the Interested Parties was lawful and procedurally done. Counsel stated that judicial appointments are anchored in Article 166(1), 171(1), 172(1) of the Constitution and the process guided by the procedure set out under the First Schedule to the Judicial Service Act. Counsel averred that the 1st Respondent from the onset when it made its advertisement on 14th Marc 2022, had followed this procedure until the nomination of the successful candidates.
42. Counsel noted that the interviews in line with Article 10 (2)(a) & (c) of the Constitution had been conducted in an open and transparent manner where the general public and media had access. Also, the public was asked to issue any information and comments concerning the candidates and stakeholder engagements held thus fulfilling the public participation principle as echoed in Mugo & 14 Others v Matiang’i & another; Independent Electoral and Boundaries Commission & 19 others [2022] KEHC 158 (KLR).
43. Speaking to the additional candidate, Counsel submitted that the decision was reasonably informed by the occurrence of one more vacancy in the Court of Appeal. Counsel pointed out that Paragraph 20(2) Part Vii of the First Schedule of the Judicial Service Act provides that, nothing in the Schedule shall limit the inherent power of the Commission to make such decisions as may be necessary for the ends of justice or to prevent abuse of the process of the Commission.
44. Counsel contended that in making the decision to nominate an extra candidate, the 1st Respondent had lawfully and reasonably exercised its power. Counsel added that the 1st Respondent in this way, interpreted the Constitution as guided under Article 259 of the Constitution. That is as giving it leeway to recommend the additional candidate thus in line with Article 10 and 172(1) of the Constitution. As such, Counsel submitted that the 1st Respondent was guided by the constitutional and statutory provisions in reaching its final decision.
45. Counsel on the second issue submitted that the Petitioner’s claim of discrimination of Judges of Special Court Judges was unfounded as the recruitment process is strictly guided by the dictates of Article 172(2) of the Constitution and qualifications set out under Article 166(4) of the Constitution. Counsel submitted that an analysis of these provisions makes it plain that it is not a requirement in law that Judges of the Special Court have automatic slots.
46. Be that as it may, Counsel submitted that to ascertain whether discrimination has occurred it is necessary to consider the various elements. Reliance was placed in Centre For Rights Education And Awareness (Creaw) & 7 Others V Attorney General [2011] eKLR where it was held that:
“In support of the argument that the nominations infringed the right to equality, the petitioners cited a decision of the Constitutional Court of South Africa, JACQUES CHARL HOFFMANN vs. SOUTH AFRICAN AIRWAYS, CCT 17 OF 2000 where the court stated:
“This court has previously dealt with challenges to statutory provisions and government conduct alleged to infringe the right to equality. Its approach to such matters involves three basic enquiries: first, whether the provision under attack makes a differentiation that bears a rational connection to a legitimate government purpose. If the differentiation bears no such rational connection, there is a violation of Section 9(1). If it bears such a rational connection, the second enquiry arises. That enquiry is whether the differentiation amounts to unfair discrimination. If the differentiation does not amount to unfair discrimination, the enquiry ends there and there is no violation of Section 9(3). If the discrimination is found to be unfair, this will trigger the third enquiry, namely, whether it can be justified under the limitations provision. Whether the third stage, however, arises will further be dependent on whether the measure complained of is contained in a law of general application.”
47. Comparable dependence was placed in Harksen vs Lane No& others (1997) ZACC 12.
48. Considering this, Counsel argued that the claim of discrimination lacked merit since the 1st Respondent in making its decision was wholly guided by the dictates of the law, in which instance do not give rise to unequal or discriminatory treatment.
49. Moving to the third issue, Counsel submitted that the Petitioner had failed to adduce any evidence to support the claim that the Presiding Judges in Special Courts are denied access to allowances as those granted to the High Court. Reliance was placed in Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR where it was held that:
“In my view the petitioner has failed to discharge the burden of prove to the required standard. To my mind the burden of establishing all the allegations rests on the Petitioner who is under an obligation to discharge the burden of proof. All cases are decided on the legal burden of proof being discharged (or not).”
50. Similar dependence was placed in Mohammed Abduba Dida v Debate Media Limited & another (2018)eKLR.
51. Finally, Counsel submitted that the 1st Respondent is not mandated to publish or publicize the scorecards of the Applicants as the same would be offensive to the provisions of Article 31 of the Constitution. Besides he argued that the same would prejudice the candidates future career prospects for example where the reason for disqualification would be a lack of integrity and equally such disclosure would compromise the recruitment process.
Analysis and Determination
52. It is my considered opinion that the issues that arise for determination in this matter are as follows:
i. Whether this Court has jurisdiction to entertain this matter.
ii. Whether the 1st Respondent’s action of recruiting 7 Judges of the Court of Appeal instead of 6 that were advertised violated the principles of transparency, integrity and accountability hence unconstitutional and unlawful.
iii. Whether the 1st Respondent has been biased in recruitment of Court of Appeal Judges and appointment of Presiding Judges of Superior Courts in a manner that discriminates and marginalizes Judges of the Special Courts.
iv. Whether the Petitioner is entitled to the reliefs sought.
1st issue- Whether this Court has jurisdiction to entertain this matter.
53. Jurisdiction refers to the competence of the adjudicatory body to hear and determine a dispute before it. The Supreme Court In the Matter of the Interim Independent Electoral Commission [2011] KESC 1(KLR) in addressing the issue of jurisdiction thus stated:
“Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”
54. In the same way the Court of Appeal speaking to this issue in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] KEHC 5855 (KLR) opined as follows:
“So central and determinative is the question of jurisdiction that it is at once fundamental and over-arching as far as any judicial proceeding is concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it, once it appears to be in issue, is a desideratum imposed on courts out of a decent respect for economy and efficiency and a necessary eschewing of a polite but ultimately futile undertaking of proceedings that will end in barren cul de sac. Courts, like nature, must not act and must not sit in vain.
The proper place of jurisdiction and the necessity to deal with it as the first order of business before an enquiry into merits of a cause was best captured in the case of The Owners Of The Motor Vessel Lillian ‘S’ Vs. Caltex Kenya Ltd [1989] KLR 1.”
55. The issue of lack jurisdiction was raised by the 2nd Respondent in its grounds of opposition in which it stated that this Court does not have the power to issue orders prohibiting the judges of the Court of Appeal who rank higher in the hierarchy of courts from discharging constitutional duties and to do so would constitute an impermissible infringement on the independence of the Judiciary contrary to express provisions of the Constitution. The Respondent thus argued that the Interested Parties tenure in office as Judges of the Court of Appeal was already constitutionally insulated and can only be interfered with in the manner prescribed under Article 168 of the Constitution and as such, it was beyond the purview of the jurisdiction of the High Court.
56. The Petitioner submitted that he has the requisite locus standi to file this Petition in public interest as it concerns constitutional issues surrounding the appointment of the Interested Parties. To buttress this point, reliance was placed in Article 22 and 258 of the Constitution. The Petitioner argued that the gist of the Petition was whether the 1st Respondent action during the recruitment process of the Judges of the Court of Appeal (Interested Parties) violated the Constitution as contradistinguished from a Petition against their removal.
57. I concur with the Petitioner that pursuant to Article 258 (1), the Constitution has given the mandate to every person to institute court proceed
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1. The Petition dated 19th July 2022 is supported by the Petitioner’s affidavit of similar date and a further affidavit dated 17th November 2022.
2. The Petition challenges the 1st Respondent’s recruitment of the Interested Parties to be Judges of the Court of Appeal on the basis that the 1st Respondent has been carrying out recruitment process of the Judges of the Court of Appeal in a manner that discriminates against the Judges of the Employment and Labour Relations Court as well as the Environment and Land Court thus rendering the process unlawful and unconstitutional.
3. The Petitioner further averred that the 1st Respondent’s discriminatory actions against Judges in the Special Courts also extend to designation of the Judges to be the Presiding Judges of the Superior Courts.
4. Consequently, the Petitioner argues that 1st Respondent’s actions are unconstitutional and violate Article 10, 27, 41(a), 47(1), 73, 75 and 232 of the Constitution. The Petitioner thus seeks the following reliefs against the Respondents:
i. A declaration that the JSC''s impugned recruitment of the seven (7) CA judges is irregular, unfair, unlawful and unconstitutional and, therefore, invalid, null and void ab initio.
ii. A declaration that, under the Constitution, the JSC is bound by law to be transparent and accountable, including by holding interviews for candidates to be appointed as judges in the open and publishing and publicizing the score cards.
iii. A declaration that the JSC should take steps to ensure there is continuous representation in the CA of judges appointed from the two specialist courts established under Article 162(2) of the Constitution.
iv. An order quashing the recruitment, appointment, and swearing into office of the seven (7) CA judges.
v. An order compelling the Respondents to pay to the Petitioner''s costs of this suit.
vi. Any other relief this Court may deem just to grant.
Petitioner’s Case
5. The Petitioner avers that the 1st Respondent advertised for 6 vacancies for Court of Appeal Judges. 63 candidates applied and out of this 31 were shortlisted for interviews. Subsequently, 7 candidates were recommended for appointment by the President, being the Interested Parties herein. The Interested Parties were thereafter appointed by the President vide a Gazette Notice No.8665 dated 19th July 2022.
6. According to the Petitioner, the Constitution does not envisage a scenario where the 1st Respondent can appoint 7 people to fill 6 vacancies. In his view, the 7th slot was deliberately hidden from the public to achieve their improper motives while advancing corrupt practices. The Petitioner asserts that this is a blatant display of impunity by the 1st Respondent which is unconstitutional and casts doubt on the recruitment process.
7. The Petitioner further contends that despite 4 Employment and Labour Relations Court Judges and 2 Environment and Land Court being shortlisted, none was appointed in the end. He claims that this has become the 1st Respondent’s norm, where only High Court Judges are appointed to the exclusion of the Judges in the Special Courts. He asserts that this action which runs a foul the spirit of Article 162(2) of the Constitution, curtails the enrichment of diversity in the Court of Appeal from the expertise of Judges from the Special Courts.
8. Additionally, he accuses the 1st Respondent of failing to uphold the principles of transparency and accountability in line with Article 10 of the Constitution. This is since, the 1st Respondent failed to disclose the scores of each candidate. He adds that the interviews were not done openly and thus theorizes that the 6 appointed High Court Judges were exclusively appointed based on the Court they serve in.
9. The Petitioner further alleges that Judges from the Special Courts are equally not appointed as Presiding Judges of Court Stations like their counterparts even where they head court stations in different parts of the country. Moreover, that they have never been gazetted by the Salaries and Remuneration Commission (SRC) for extra remuneration as Presiding Judges in that case.
10. Considering this, the Petitioner argues that the 1st Respondent has discriminated and marginalized Judges from the Special Courts as though they are less qualified compared to High Court Judges. This action is alleged to have unlawfully stunted their career progression and violated their rights to equality and freedom from discrimination, human dignity, fair labour practices and a fair administrative action.
11. Accordingly, the Petitioner brings this Petition against the 1st Respondent for its failure to uphold a transparent and accountable recruitment process in relation to the Court of Appeal Judges and further discriminating against Judges in the Special Courts in these recruitments and their role. These actions are thus adjudged to be unconstitutional and in violation of Articles 10, 27, 41(a), 47(1), 73, 75 and 232 of the Constitution.
1st Respondents’ Case
12. In response, the 1st Respondent filed a Replying Affidavit by the then Chief Registrar, Anne Amadi sworn on 14th February 2023.
13. The Chief Registrar swore that the instant Petition is a move by the Petitioner to use this Court to compromise the 1st Respondent’s constitutional mandate as envisaged under Article 172(1) (a) of the Constitution as read with Section 30 and the First Schedule of the Judicial Service Act.
14. She stated that at the time of making the vacancy announcement, the Court of Appeal faced a severe deficit of Judges, in that it had 20 Judges against the statutory capacity of 30 Judges. In addition, out of the 20 Judges, one is a member of the 1st Respondent and 1 serves in the East African Court of Justice’s Appeal Chamber. Further, she stated that in 2022, 2 Judges retired. At that point, the total number of active Judges in the Court of Appeal was 15, for the 6 Country stations.
15. She states that the Court of Appeal Judges shortfall had a negative impact on dispensation of justice in that it gave rise to a workload of 1562 cases per a single Judge in a year and also increased the time of an appeal to an average of 7 years instead of 1 year. She also notes that some stations like Nyeri did not have sitting Judges while plans to operationalize Nakuru and Eldoret stations were halted. In the end, it thus necessary that recruitment of more Judges be done.
16. On 14th March 2022 the 1st Respondent published an advertisement for recruitment of 6 Judges. The advertisement attracted 68 applicants. At its meeting dated 26th and 27th April 2022, the 1st Respondent reviewed all the applications and shortlisted 31 candidates.
17. These candidates were then vetted by the various bodies such as Ethics and Anti-Corruption Commission. Furthermore, the interviews were broadcasted live on the 1st Respondent’s social media pages and process was also open to the media and the public.
18. Additionally, members of the public were invited to give their views and any information of interest concerning the candidates. She avers that the 1st Respondent received several complaints and information from the public including the vetting agencies. These were processed and served upon the respective candidates so as to provide their responses. These comments were also considered during the interviews and overall nomination of the best candidates. The 1st Respondent in addition organized forums with stakeholders from various sectors on 23rd June 2022.
19. She depones that upon conclusion of the process, the 1st Respondent selected the 7 Interested Parties. The decision to select 7 candidates is said to have been informed by the retirements of Hon. Lady Justice Roseline Nambuye on 21st May 2022 during the pendency of the recruitment process. In this regard, she states that the 1st Respondent exercised its powers under Paragraph 20(2) Part VII of the First Schedule of the Judicial Service Act, 2011. This decision was further guided by the need to address gender and regional balance and minority interest in the Court of Appeal. She posits that it would have been a waste of public funds to commence another recruitment exercise during the pendency of another to fill one vacancy.
20. She as well asserts that the 1st Respondent’s actions were guided by Article 10, 172 and 259 of the Constitution and provisions of the First Schedule of the Judicial Service Act. She states thus that the 1st Respondent’s actions in the recruitment process were constitutional.
21. It is averred that the Petitioner has not demonstrated the prejudice occasioned to him by the 1st Respondent’s decision to nominate 7 candidates. Likewise, it is noted that the Petitioner did not provide any evidence to support the claim of discrimination of the Special Courts Judges.
22. That said, she states that there is no legal requirement that Judges in these Courts should have automatic slots in the Court of Appeal. Instead, the law obligates the 1st Respondent to select the best candidates as guided by their professional competence, written and oral communication skills, integrity, fairness, good Judgement among others. She notes that the 1st Respondent is further guided by merit, competitiveness, transparency and promotion of gender equality. She informs that the law does not obligate the 1st Respondent to publicize the scores of every candidate and that the same would be a violation of the right to privacy of the candidates.
23. Furthermore, she depones that the determination of allowances payable to Judges and other State Officers solely lies with the SRC and thus the issue of special duty allowance payable to Presiding Judges and Heads of Station ought to be directed to it.
24. Nonetheless, it was highlighted that no evidence had been adduced to support the claim that Judges in the Special Courts are denied special duty allowance.
2nd Respondent’s Case
25. In reaction to the Petitioner’s case, the 2nd Respondent filed grounds of opposition dated 27th July 2022 on the basis that:
i. The High Court lacks the jurisdiction to issue orders of prohibition, prohibiting judges of the Court of Appeal who rank above the Court in the hierarchy of courts, from discharging constitutional duties.
ii. Issuance of orders of prohibition against Judges of the Court of Appeal from performing their constitutional functions would constitute an impermissible infringement on the independence of the Judiciary contrary to express provisions of the Constitution.
iii. The gravamen of Gazette Notice No. 8665 of 19th July 2022 has already been given effect to and the same is not amenable to be affected in any way by a conservatory order.
iv. The Interested Parties tenure in office as Judges of the Court of Appeal is constitutionally insulated and may only be interfered with in the manner prescribed under Article 168 of the Constitution; therefore, beyond the purview of the jurisdiction of the High Court.
v. The Application is misconceived and bad in law.
Interested Parties Case
26. These Parties responses and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
27. The Petitioner filed submissions dated 29th February 2024 and underscored the issues for determination as: whether the Petitioner has locus standi to institute and prosecute these proceedings; whether this Court has jurisdiction over this motion; whether the JSC’s recruitment of the seven (7) judges to fill six (6) slots was a nullity; whether the JSC has discriminated against ELRC and ELC judges in appointments to the CoA and as Presiding Judges, and whether the JSC was not transparent and accountable in the appointment of Judges.
28. The Petitioner submitted that he has the requisite locus standi to file this Petition in public interest as it concerns constitutional issues surrounding the appointment of the Interested Parties. To buttress this point reliance was placed in Article 22 and 258 of the Constitution. In addition, the case of John Harun Mwau and 3 Others vs. Attorney General and 2 Others [2012] eKLR where it was held that:
“The intent of Articles 22 and 23 of the Constitution is that persons should have free and unhindered access to this court for the enforcement of their fundamental rights and freedoms. Similarly, Article 258 allows any person to institute proceedings claiming the Constitution has been violated or is threatened.”
29. Like dependence was placed on John Kipng''eno Koech & 2 others v Nakuru County Assembly & 5 others [2013] eKLR, Michael Osundwa Sakwa vs Chief Justice and President of the Supreme Court of Kenya & another (2016) eKLR and Kiluwa Limited & Another vs. Commissioner of Lands & 3 others, 2015 eKLR.
30. The Petitioner in the second issue first pointed out that this Petition specifically revolves around the question whether the 1st Respondent impugned actions during the recruitment process were unconstitutional thus null and void, not removal of the Interested Parties from office. On this premise, Counsel submitted that this Court has jurisdiction to answer this question in line with its mandate under Article 23 and 165(3) of the Constitution. Reliance was placed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where it was held that:
“We disagree with this approach and are not prepared to hold as urged by the appellant as such an approach would pose a recharacterization risk in similar forms of constitutional litigation. In our considered opinion, the petition before the High Court was not instituted as a removal procedure nor as a complaint against the appellant in his capacity as a State Officer. The petition was a challenge to the constitutionality of the process and manner of the appellant’s appointment. This Court takes the view therefore that it is not the outcome of litigation that is determinative of its nature, but its substance at the time of seizure and proceedings. Viewed thus, an order setting aside the appointment of the appellant flows from a judicial finding of the unconstitutionality of the process and manner of appointment, not as a consequence of a removal procedure.”
31. Additional reliance was placed in Federation of Women Lawyers Kenya (FIDA-K) & 5 others v Attorney General & Another (2011) eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & another (2014) eKLR.
32. Turning to the third issue, the Petitioner stated that the 1st Respondent was under the obligation to follow the law in the appointment of the Interested Parties. He pointed out that the 1st Respondent had not denied it advertised for 6 posts but appointed 7 candidates.
33. The Petitioner reasoned that the retirement of Justice Nambuye was not unexpected as this was information within its knowledge well in advance. The Petitioner argued that the manner in which this was even done was contrary to Paragraph 3(1) and (2) of the First Schedule in the Judicial Service Act which directs that a vacancy in the office of a Judge must be notified in the Gazette and circulate the same on its website, the Law Society of Kenya and other legal associations. Thereafter invite qualified person to apply for the position. The Petitioner argues that the 1st Respondent did not adhere to this provision thus violated mandatory procedure.
34. The Petitioner contended that in carrying out its duties, the 1st Respondent is obligated to be transparent, accountable and exercise other principles of good governance. Further, that any action by the Respondents pertaining the failure to apply the law on the recruitment of judges, comes under the ambit of Article 47 of the Constitution. Considering this, the Petitioner argued that the appointment of the Interested Parties to fill the six advertised slots was unconstitutional. He reasoned that the 6 candidates’ appointment could only have been saved if the 1st Respondent disclosed who it had appointed to fill the 7th slot.
35. Reliance was placed in Republic vs. Kenya National Examination Council, Miscellaneous Civil Application No. 328 of 2015 where it was held that:
“That the Court can interfere where there is improper exercise of discretion is now trite. As was held by Warsame, J (as he then was) in Re: Kisumu Muslim Association Kisumu HCMISC. Application No. 280 of 2003, where an officer is exercising statutory power he must direct himself properly in law and procedure and must consider all matters which are relevant and avoid extraneous matters. The learned Judge further held that the High Court has powers to keep the administrative excess on check and supervise public bodies through the control and restrain abuse of powers. Concerning irrelevant considerations, where a body takes account of irrelevant considerations, any decision arrived at becomes unlawful. Unlawful behaviour might be constituted by
(i) an outright refusal to consider the relevant matter;
(ii) a misdirection on a point of law;
(iii) taking into account some wholly irrelevant or extraneous consideration...”
36. Comparable reliance was placed in Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300, Republic vs. Kenya Power & Lighting Co. Ltd. & Another (2013) eKLR, Republic vs. National Police Service Commission exparte Daniel Chacha (2016) eKLR, Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, and Christopher Ndarathi Murungaru v Kenya Anti-Corruption Commission & another [2006] eKLR.
37. On the fourth issue, the Petitioner maintained that the 1st Respondent in making the appointments had discriminated against the Judges of the Special Courts. Additionally, that these Judges are also discriminated when it comes to holding the position of Presiding Judges. Reiterating his averments, he argued that 1st Respondent had not discharged its burden of proof that there was no discrimination in terms of Section 5(7) of the Employment Act.
38. On the fifth issue, the Petitioner submitted that the inevitable conclusion in the circumstances of this case is that the 1st Respondent was not transparent and accountable in making the appointments. In light of this, he urged the Court to issue the appropriate relief. Reliance was placed in Law Society of Kenya vs. Attorney General & another; Mohamed Abdulahi Warsame & another (Interested Parties) [2019] eKLR where it was held that:
“Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case, the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights.”
39. Like dependence was placed in Hoffmann vs. South African Airways (CCT17/00) [2000] ZACC 17.
1st Respondent’s Submissions
40. Muma Kanjama Advocates for the 1st Respondent filed submissions dated 28th October 2024 where the key issues were highlighted as: whether the appointment of the Interested Parties was a product of a constitutional and lawful process, whether the appointment process for Judges of the Court of Appeal discriminates against Special Court Judges, whether the 1st Respondent should retrospectively pay Presiding Judges allowances to Special Court Judges and whether the 1st Respondent is mandated to publish the score cards of the candidates.
41. Counsel submitted that the appointment of the Interested Parties was lawful and procedurally done. Counsel stated that judicial appointments are anchored in Article 166(1), 171(1), 172(1) of the Constitution and the process guided by the procedure set out under the First Schedule to the Judicial Service Act. Counsel averred that the 1st Respondent from the onset when it made its advertisement on 14th Marc 2022, had followed this procedure until the nomination of the successful candidates.
42. Counsel noted that the interviews in line with Article 10 (2)(a) & (c) of the Constitution had been conducted in an open and transparent manner where the general public and media had access. Also, the public was asked to issue any information and comments concerning the candidates and stakeholder engagements held thus fulfilling the public participation principle as echoed in Mugo & 14 Others v Matiang’i & another; Independent Electoral and Boundaries Commission & 19 others [2022] KEHC 158 (KLR).
43. Speaking to the additional candidate, Counsel submitted that the decision was reasonably informed by the occurrence of one more vacancy in the Court of Appeal. Counsel pointed out that Paragraph 20(2) Part Vii of the First Schedule of the Judicial Service Act provides that, nothing in the Schedule shall limit the inherent power of the Commission to make such decisions as may be necessary for the ends of justice or to prevent abuse of the process of the Commission.
44. Counsel contended that in making the decision to nominate an extra candidate, the 1st Respondent had lawfully and reasonably exercised its power. Counsel added that the 1st Respondent in this way, interpreted the Constitution as guided under Article 259 of the Constitution. That is as giving it leeway to recommend the additional candidate thus in line with Article 10 and 172(1) of the Constitution. As such, Counsel submitted that the 1st Respondent was guided by the constitutional and statutory provisions in reaching its final decision.
45. Counsel on the second issue submitted that the Petitioner’s claim of discrimination of Judges of Special Court Judges was unfounded as the recruitment process is strictly guided by the dictates of Article 172(2) of the Constitution and qualifications set out under Article 166(4) of the Constitution. Counsel submitted that an analysis of these provisions makes it plain that it is not a requirement in law that Judges of the Special Court have automatic slots.
46. Be that as it may, Counsel submitted that to ascertain whether discrimination has occurred it is necessary to consider the various elements. Reliance was placed in Centre For Rights Education And Awareness (Creaw) & 7 Others V Attorney General [2011] eKLR where it was held that:
“In support of the argument that the nominations infringed the right to equality, the petitioners cited a decision of the Constitutional Court of South Africa, JACQUES CHARL HOFFMANN vs. SOUTH AFRICAN AIRWAYS, CCT 17 OF 2000 where the court stated:
“This court has previously dealt with challenges to statutory provisions and government conduct alleged to infringe the right to equality. Its approach to such matters involves three basic enquiries: first, whether the provision under attack makes a differentiation that bears a rational connection to a legitimate government purpose. If the differentiation bears no such rational connection, there is a violation of Section 9(1). If it bears such a rational connection, the second enquiry arises. That enquiry is whether the differentiation amounts to unfair discrimination. If the differentiation does not amount to unfair discrimination, the enquiry ends there and there is no violation of Section 9(3). If the discrimination is found to be unfair, this will trigger the third enquiry, namely, whether it can be justified under the limitations provision. Whether the third stage, however, arises will further be dependent on whether the measure complained of is contained in a law of general application.”
47. Comparable dependence was placed in Harksen vs Lane No& others (1997) ZACC 12.
48. Considering this, Counsel argued that the claim of discrimination lacked merit since the 1st Respondent in making its decision was wholly guided by the dictates of the law, in which instance do not give rise to unequal or discriminatory treatment.
49. Moving to the third issue, Counsel submitted that the Petitioner had failed to adduce any evidence to support the claim that the Presiding Judges in Special Courts are denied access to allowances as those granted to the High Court. Reliance was placed in Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR where it was held that:
“In my view the petitioner has failed to discharge the burden of prove to the required standard. To my mind the burden of establishing all the allegations rests on the Petitioner who is under an obligation to discharge the burden of proof. All cases are decided on the legal burden of proof being discharged (or not).”
50. Similar dependence was placed in Mohammed Abduba Dida v Debate Media Limited & another (2018)eKLR.
51. Finally, Counsel submitted that the 1st Respondent is not mandated to publish or publicize the scorecards of the Applicants as the same would be offensive to the provisions of Article 31 of the Constitution. Besides he argued that the same would prejudice the candidates future career prospects for example where the reason for disqualification would be a lack of integrity and equally such disclosure would compromise the recruitment process.
Analysis and Determination
52. It is my considered opinion that the issues that arise for determination in this matter are as follows:
i. Whether this Court has jurisdiction to entertain this matter.
ii. Whether the 1st Respondent’s action of recruiting 7 Judges of the Court of Appeal instead of 6 that were advertised violated the principles of transparency, integrity and accountability hence unconstitutional and unlawful.
iii. Whether the 1st Respondent has been biased in recruitment of Court of Appeal Judges and appointment of Presiding Judges of Superior Courts in a manner that discriminates and marginalizes Judges of the Special Courts.
iv. Whether the Petitioner is entitled to the reliefs sought.
1st issue- Whether this Court has jurisdiction to entertain this matter.
53. Jurisdiction refers to the competence of the adjudicatory body to hear and determine a dispute before it. The Supreme Court In the Matter of the Interim Independent Electoral Commission [2011] KESC 1(KLR) in addressing the issue of jurisdiction thus stated:
“Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”[30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.”
54. In the same way the Court of Appeal speaking to this issue in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] KEHC 5855 (KLR) opined as follows:
“So central and determinative is the question of jurisdiction that it is at once fundamental and over-arching as far as any judicial proceeding is concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it, once it appears to be in issue, is a desideratum imposed on courts out of a decent respect for economy and efficiency and a necessary eschewing of a polite but ultimately futile undertaking of proceedings that will end in barren cul de sac. Courts, like nature, must not act and must not sit in vain.
The proper place of jurisdiction and the necessity to deal with it as the first order of business before an enquiry into merits of a cause was best captured in the case of The Owners Of The Motor Vessel Lillian ‘S’ Vs. Caltex Kenya Ltd [1989] KLR 1.”
55. The issue of lack jurisdiction was raised by the 2nd Respondent in its grounds of opposition in which it stated that this Court does not have the power to issue orders prohibiting the judges of the Court of Appeal who rank higher in the hierarchy of courts from discharging constitutional duties and to do so would constitute an impermissible infringement on the independence of the Judiciary contrary to express provisions of the Constitution. The Respondent thus argued that the Interested Parties tenure in office as Judges of the Court of Appeal was already constitutionally insulated and can only be interfered with in the manner prescribed under Article 168 of the Constitution and as such, it was beyond the purview of the jurisdiction of the High Court.
56. The Petitioner submitted that he has the requisite locus standi to file this Petition in public interest as it concerns constitutional issues surrounding the appointment of the Interested Parties. To buttress this point, reliance was placed in Article 22 and 258 of the Constitution. The Petitioner argued that the gist of the Petition was whether the 1st Respondent action during the recruitment process of the Judges of the Court of Appeal (Interested Parties) violated the Constitution as contradistinguished from a Petition against their removal.
57. I concur with the Petitioner that pursuant to Article 258 (1), the Constitution has given the mandate to every person to institute court proceed
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