Courtroom guidelines Maraga appointment of Mwilu as appearing CJ was unlawful
- The Excessive Courtroom has dominated that retired Chief Justice David Maraga acted opposite to the structure by appointing Deputy Chief Justice Philomena Mwilu because the appearing CJ in December final 12 months.
- Justice Anthony Mrima mentioned by appointing Mwilu in an appearing capability, the outgoing Chief Justice presupposed to train powers that had been non-existent.
The Excessive Courtroom has dominated that retired Chief Justice David Maraga acted opposite to the structure by appointing Deputy Chief Justice Philomena Mwilu because the appearing CJ in December final 12 months.
Justice Anthony Mrima mentioned by appointing Mwilu in an appearing capability, the outgoing Chief Justice presupposed to train powers that had been non-existent.
“Briefly, His Lordship didn’t have the constitutional or legislative authority to authorize the DCJ to behave because the Chief Justice as he did vide the impugned letter,” the Choose mentioned.
Justice Maraga appointed Justice Mwilu on December 11, 2020.to behave because the CJ, pending the appointment of his successor.
Within the resolution, Justice Mrima nonetheless declined to quash Part 5(4) and 5 of the Judicial Service Fee Act saying it’s constitutional nevertheless it was enacted to take guarantee there may be seamless transition in case the Chief Justice is eliminated, dies in workplace or resigns earlier than attaining 70 years.
“In different phrases, at any time when a Chief Justice is eliminated, dies or resigns earlier than attaining the age of 70 or the ten years in workplace, the Deputy Chief or probably the most senior Choose within the Supreme Courtroom, because the case could also be, mechanically acts because the Chief Justice,” Justice Mrima mentioned.
The Choose added that DCJ Mwilu should have first taken oath of workplace, in an appearing capability. “A declaration hereby points that the Deputy Chief Justice, the Hon. Woman Justice Philomena Mbete Mwilu, acted because the Chief Justice of the Republic of Kenya in contravention of the Structure,” the Choose mentioned.
The court docket, nonetheless declined to quash the selections made by DCJ Mwilu whereas appearing because the CJ saying it’s going to trigger extra hurt than the meant good. The selections embody appointing Excessive Courtroom judges to listen to circumstances the place there may be greater than two judges and admission of advocates.
Activist Okiya Omtatah had challenged the letter by Justice Maraga saying he didn’t have powers to nominate DCJ Mwilu because the appearing Chief Justice.
The retired CJ was scheduled to proceed on terminal depart from December 11, 2020 to January 12 and subsequently retire. However earlier than leaving workplace, he gave the DCJ the authority to be the Performing Chief Justice.
Mr Omtatah argued that it is just JSC below Article 166(1)(a) of the Structure, that might advocate to the President the appointment of the Chief Justice.
JSC defended the transfer saying the Deputy Chief Justice will solely act as Chief Justice for six months pending the appointment of a brand new chief Justice, a transfer that’s meant to forestall a disaster within the Judiciary within the occasion the workplace of the Chief Justice falls vacant.
Justice Mrima additional dominated that there should be laws offering for the recruitment of a Chief Justice earlier than the time period of workplace of the incumbent expires both on attaining 70 12 months or upon serving ten years as a Chief Justice, as required.
Parliament, the court docket was informed was already within the means of enacting the regulation.
“A succeeding Chief Justice should be appointed earlier than the retirement of a serving Chief Justice,” the Choose mentioned including that the tenure of the Deputy Chief Justice will not be tied to that of the Chief Justice.