ojiendaLaw Society of lawyers Prof Tom Ojienda,Nzamba Gitonga, Prof Tom, Michael Muchemi and Peter Wanyama at Milimani law court after they filed an application seeking to suspend implementation of the Judicial Service Act which gives the President power to appoint the Chief Justice on Wednesday January 6, 2015.


High Court has declined to suspend the implementation of the Judicial Service Act which gives the President power to appoint the Chief Justice and Deputy Chief Justice.

This is after Law Society of Kenya moved to court through lawyers Nzamba Gitonga, Prof Tom Ojienda, Michael Muchemi and Peter Wanyama this morning seeking the high court to suspend the act claiming its unconstitutional act.

Mr Kitonga said the matter was urgent given that the Judiciary is currently involved in the recruitment of the Deputy Chief Justice and if the orders are not granted, there was likelihood that the unconstitutional criteria prescribed in the amendment will be used.

The amendment changed the Act to compel the Judicial Service Commission to forward three names to the President instead of one as provided for previously.

Lawyer Nzamba Gitonga told the court that the matter is of great public interest and orders sought would not prejudice the Attorney General and the national Assembly.

He further said the senate was not involved when the amendment were passed by the National Assembly as per Article 118 which is a gross violation of the constitution.

“Any suggestion that independent of Judiciary is under attack is sufficient enough to give urgency to a matter of this nature” Lawyer Nzamba told the court.

Prof Tom Ojienda said amendment will interfere with the independence of the Judicial Service Commission and urged the court to grant the orders sought in their application.

“The amendment are unconstitutional and cannot be allowed to stand even a single day” Said Prof Ojienda.

Justice Odunga said the issues raised in the application were critical given that the amendments affects the independence of the judiciary and interferes with separation of powers.

“I am satisfied that the matter is urgent and ought to be heard expeditiously but I cannot issue orders at this stage to suspend the implementation of the law because there will be no prejudice suffered within the seven days given for the inter-parties hearing,” said the judge.

Justice Odunga certified the application by the Law Society of Kenya (LSK) as urgent saying it has raised critical constitutional questions and should be heard expeditiously.

LSK has in its application faulted the new law, which came into effect on December 15 last year saying it has amended critical sections of the Judicial Service Act therefore interfering with the independence of the Judiciary.

The Act as amended fundamentally upsets the doctrine of power between the three arms of government and should be suspended because the independence of the judiciary is at stake.

“The Constitution has clearly stated that the Judicial Service Commission (JSC) shall forward one name of a qualified person to the president for nomination as Chief Justice or chief Justice but the Act has come up with a formulation requiring JSC to forward three names,” said LSK through Senior Counsel Nzamba Kitonga.

Lawyers have opposed the amendment, saying it is against the constitution and amounts to watering down judiciary’s independence.

The amendment comes at a time when both Chief Justice Willy Mutunga and Deputy Chief Justice Kalpana Rawal are expected to retire to allow the judiciary to hire new bosses.

Justice Odunga directed parties in the case be served and set the hearing for January 13 for further directions.


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