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L-R: Justices Anthony Mrima, (Lady) Wifrida Okwany and Reuben Nyakundi/CFM

Kenya

Constitutional Court declines to stay orders restraining JSC from naming CJ nominee

Wekesa was the ninth candidate to be interviewed for the CJ position which fell vacant when David Maraga retired in January

NAIROBI, Kenya, April 22 —The Constitutional Court on Thursday declined a request by the Judicial Service Commission (JSC) to stay its orders restraining it from naming the Chief Justice nominee pending determination of a petition challenging the recruitment process.

In a ruling delivered by Justices Anthony Mrima, (Lady) Wifrida Okwany and Reuben Nyakundi, the court noted that there was ample time for the JSC to approach the Court of Appeal.

“We are of the very considered position that there is ample time for the 1st respondent to approach the court of Appeal before the orders issued by this Court take effect,it is for this reason the court declines the invitation to issue an interim stay order,” the three-judge bench noted.

JSC had argued that it needed orders barring the panel from scoring CJ candidates stayed by the High Court before it could file an application for stay before the Court of Appeal.

“The respondent herein being dissatisfied with the ruling of Justices Mrima, Okwany and Nyakundi delivered on 21st March 2021 intends to appeal to the Court of Appeal against the whole of the said ruling,” JSC argued.

The commission was responding to a ruling in which the High Court had issued several orders barring the Commission from among other things, scoring CJ candidates.

The Constitutional Court’s ruling on Wednesday followed a consolidated petition in which two petitioners challenged the recruitment process of the country’s new CJ.

In the petition, Lawyers Danstan Omari and Prof. Elizah Ongoya who represented the petitioners cited non-declaration of wealth by candidates and the chairing of the JSC interviews by Prof Olive Mugenda as opposed to Acting CJ Mwilu.

The bench empanelled by Acting Chief Justice Philomena Mwilu however directed the panel to conclude interviews for the remaining candidates on Friday as scheduled.

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The JSC had by Thursday interviewed Justices Said Chitembwe, Nduma Nderi, David Marete, (Lady) Martha Koome and William Ouko as well as lawyers Fred Ngatia and Philip Murgor,Prof Patricia Mbote and Prof Wekesa Moni .

Alice Yano was scheduled to appear before JSC on Friday as the panel concludes interviews for the position of Chief Justice.

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