“The cherry-picking and selective appointment or swearing-in of judges undermines the functions and powers of the Judicial Service Commission and the functioning of the Judiciary. It also is an improper extension of the role of the Executive and has created a constitutional crisis,” Ochiel argues.
The Lobby group further argues that the partial swearing-in of a few judges would irreparably violate the Constitution.
Ochiel says that last year they had filed the case after getting information that the President was planning to swear in a part of the 40 judges and their fears have been confirmed.
“The worst has happened: Katiba’s fears have come true. By Gazette Notice 5233 to 5235 of 2021, the President has cherry-picked some 34 judges in waiting while discriminating against six others,” the lobby group says.
They also argue that the imminent swearing-in in these circumstances would irreparably violate the Constitution and the rights of the six judges in waiting some of whom are already serving as judges.
On Thursday, Uhuru rejected the nomination of justices Joel Ngugi and George Odunga to the Court of Appeal in a move seen as hitting back at the duo over their recent ruling against the BBI.
In a gazetted notice on Thursday evening, the President also declined the nomination of judges Weldon Korir and Aggrey Muchelule to the Court of Appeal.
They were among 41 judges the Judicial Service Commission had nominated and subsequently forwarded their names to the President for appointment in July 2019.
However, Uhuru delayed the appointments, with reports saying he had issues with the integrity of some of the nominees.
The issue dragged to court where it was ruled that the President was obligated by the Constitution to abide by the JSC decision.
Attorney General Paul Kihara appealed the ruling. The case is still pending.