President Uhuru Kenyatta has appointed 34 judges, leaving out six among them justices Joel Ngugi and George Odunga who sat on a bench that declared the push to amend the Constitution through the Building Bridges Initiative (BBI) unconstitutional.
Others left out are High Court judges Weldon Korir and Aggrey Muchelule.
The move is likely to spark a row in which the Judicial Service Commission (JSC) and activists have maintained that the President's role is minimal, that of confirming the list as forwarded by the Commission.
The judges who were appointed are long-serving judge Msagha Mbogholi and his High Court colleagues Hellen Omondi, Francis Tuiyott, Jessie Lesiit, Mumbi Ngugi and Pauline Nyamweya. Also appointed law scholar Dr Imanata Laibuta.
The President also appointed nine judges to the Employment and Labour Relations Court and another 18 to the Environment and Land Court, leaving out two judges.
Those appointed to the Employment and Labour Relations Court are Baari Christine Noontatua, Gakeri Jacob Kariuki, Keli Jemima Wanza, Mwaure Ann Ngibuini, Matanga Bernard Odongo Manani, Rutto Stella Chemtai, Kebira Ocharo, Kitiku Agnes Mueni-Nzei and Nderitu David Njagi.
Those appointed to the Environment and Land Court are Mboya Oguttu Joseph, Naikuni Lucas Leperes, Mwanyale Michael Ngolo, Addraya Edda Dena, Kimani Lilian Gathoni, Kamau Joseph Mugo, Wabwoto Karoph Edward, Koross Anne Yatich Kipingor and Gicheru Maxwell Nduiga. Others are Mogeni Ann Jacqueline Akhalemesi, Ongarora Fred Nyagaka, Christopher Kyania Nzili, Mugo David Mwangi, Omollo Lynette Achieng’, Washe Emmanuel Mutwana, Nyukuri Annet, Murigi Theresa Wairimu and Asati Esther.
While rejecting the list in 2019, President Kenyatta cited integrity issues among some judges.
The commission completed the recruitment of the judges between July and August 2019 and forwarded the list to President Kenyatta for appointment.
The list included 11 judges destined for the Court of Appeal, 20 judges to the Environment and Land Court and 10 judges to the Employment and Labour Relations Court.
One of the judges, Harrison Okeche, died in a road accident last year. Several petitions were filed in a bid to compel President Kenyatta to appoint the judges.
Among the petitioners were Adrian Kamotho and Okiya Omtatah who argued that the President’s failure to appoint the judges as recommended by JSC, was a conspiracy to sabotage and frustrate the Judiciary in executing its constitutional mandate.
In rejecting the list, President Kenyatta through the Head of Civil Service Joseph Kinyua, said some of the judges had integrity issues.
Chief Registrar of Judiciary Anne Amadi admitted receiving a letter from the National Intelligence Service (NIS), raising concerns about the suitability of some of the persons shortlisted for interviews.
She, however, said the NIS did not give details of the concerns and, therefore, the JSC could not act on the letter without details which would have enabled those adversely mentioned to respond.
She faulted President Kenyatta saying he has several representatives in the JSC including Attorney General Kihara Kariuki, Olive Mugenda, Felix Kosgei and a nominee of the Public Service Commission who took part in the interviews.
She said the JSC is an independent constitutional Commission that is subject only to the Constitution and the law, and not subject to direction or control of any person or authority.
Former Chief Justice David Maraga tried in vain to have the President appoint the judges.
"The Constitution, as the two multi-judge Court cases held, requires you to appoint Judges recommended to you by the JSC which you have refused to do. The laws of this country include valid court orders. It, therefore, behoves you to appoint the 41 persons recommended for appointment by the JSC as ordered by the Court without any further delay,” Mr Maraga said in a press conference.
Justice Maraga argued that if the Executive's allegations were true, these persons should not, then, be serving as judges.
"However, no evidence whatsoever was availed to the JSC both during the interviewing process and after,” he said.
Mr Kinyua told the court that the President had received adverse reports in respect of some of the persons recommended for appointment as Judges after their names were published in the media.
He stated that it would be irresponsible and contrary to his oath of office, for the President to appoint Judges or any other public or State officer to office, where serious questions have been raised about their integrity.
He went on to say the allegations were more serious for judges who enjoy security of tenure and whose probity and integrity should be above reproach.