Law Society of Kenya (LSK) has challenged the nomination of Zablon Muruka Mokua as a judge of the East African Court of Justice (EACJ) arguing that the former ward representative does not qualify for the post.
Mr Mokua, who served as a member of County Assembly (MCA) for Basi Central Ward in Kisii County from 2017 to 2022 was nominated on April 18, 2024, by East African Community (EAC) Cabinet Secretary Peninah Malonza as Kenya’s nominee for the position of judge of the regional court’s First Instance Division.
He is set to replace Justice Charles Nyachae who resigned in January.
But the LSK has challenged his nomination arguing that he is not a jurist of recognised competence to be nominated as a judge and that the Judicial Service Commission (JSC), which is mandated with recruiting judges, was not involved in the process of his nomination.
“The 3rd respondent (Mr Mokua) does not meet the requisite qualifications to be nominated as a judge of a superior court in Kenya and subsequently as a judge of the East African Court of Justice’s First Instance Division,” the LSK said in the petition.
Justice Chacha Mwita declined to stop the EAC summit of the heads of State from endorsing the appointment, despite pleas by LSK that once appointed, the case would be rendered a nullity.
Attorney General Justin Muturi challenged the jurisdiction of the High Court to hear the case, arguing that the matter should have been filed at the EACJ.
The judge directed the parties to file their submissions ahead of the hearing on June 21. Other parties named in the case are Ms Malonza, the East Africa Law Society and the JSC.
In his curriculum vitae, Mr Mokua says he is managing partner and head of litigation at Zablon Mokua & Company Advocates. He is also a pastor at the Pentecostal Mission Church-Kenya.
The LSK maintained that CS Malonza has no constitutional mandate or authority to nominate a judge for appointment.
According to the LSK, it is the JSC that has the mandate to determine the suitability and eligibility of a person worth being nominated as a judge.
The court was informed that Mr Mokua does not meet the minimum requirements for qualifications as a judge of a superior court, in particular, the High Court, which is equivalent to the EACJ First Instance Division.
For one to qualify to become a judge, he or she must possess the experience required irrespective of whether that experience was gained in Kenya or another Commonwealth common-law jurisdiction.
The candidate should at least have ten years of experience as a superior court judge or professionally qualified magistrate or at least ten years of experience as a distinguished academic or legal practitioner or such experience in another relevant legal field.
Further, the LSK said the nomination process of Mr Mokua was shrouded in secrecy thus flouting the national values and principles of governance of rule of law, participation of the people, inclusiveness, equality, protection of the marginalised, transparency and accountability.
“By surreptitiously hand-picking the 3rd Respondent (Mr Mokua) as Kenya’s nominee for the position of a Judge of the First Instance Court of the East African Court of Justice, the 1st and 2nd respondents (Attorney General and CS Malonza, respectively) denied other qualified Kenyans an opportunity to offer themselves for appointment in a competitive manner,” the LSK said.
The LSK maintained that the High Court has the powers to determine the matter as the EAC Treaty does not specifically confer jurisdiction upon the EACJ in a dispute relating to the nomination of a judge of the court.
“Instead, by virtue of Article 24(1) of the EAC Treaty, the nomination of Judges to the East African Court of Justice is a matter within the domain of the East African Community Partner States and as such, the same is guided by the Partner States’ Constitution and law,” the LSK said.
