The High Court of Kenya has stripped President William Ruto of his power in the appointment of judges at the East African Court of Justice (EACJ).
Justice Chacha Mwita on Friday, January 31 ruled that the President, through the Ministry of East African Community (EAC), cannot appoint a judge to represent Kenya at EACJ without involving the Judicial Service Commission (JSC)
The judge further declared the appointment of Dr. Zablon Mokua, who served as a member of the County Assembly (MCA) of Kisii for Bassi Central Ward from 2017 to 2022, unconstitutional.
In his judgment, Justice Mwita stated that Mokua’s nomination did not meet the criteria outlined in Article 24 of the Treaty Establishing the EAC.
This comes after Justice Lawrence Mugambi in June last year blocked the appointment of Mokua as an EACJ judge after his selection was challenged by the Law Society of Kenya (LSK).
The LSK in the petition argued that Dr Mokua did not qualify for the position.
“A conservatory order is hereby issued suspending any further consideration, deliberation, processing, approval or appointment of the 3rd Respondent (Dr Mokua) as a judge of the East African Court of Justice First Instance Division, pending the hearing and determination of this application,” Justice Mugambi ruled at the time.
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Mokua was nominated on April 18, 2024, by former East African Community Cabinet Secretary Peninah Malonza to replace Justice Charles Nyachae who had resigned earlier in January that year.
Nomination of EACJ judge challenged
However, LSK challenged his nomination arguing that he is not a jurist of recognized competence worth being nominated as a judge and that JSC was not involved in the process of his nomination.
The law society in the petition further informed the court that the EAC Summit meeting haf been scheduled for Friday, June 7, 2024, to consider the proposed appointment of Dr Mokua.
“Petitioner has an arguable case with high chances of success on the basis that the nomination of the 3rd Respondent as a judge of the East African Court of Justice’s First Instance Division was done in contravention of the Constitution,” LSK lawyer Emily Osiemo told the court.
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LSK also submitted that former CS Malonza had no constitutional mandate or authority to nominate a judge for appointment.
According to the society, the mandate to determine the suitability and eligibility of a person worth being nominated as a judge lies with JSC.
Justice Mugambi in his ruling directed the case to be heard before judge Chacha Mwita on June 21 when he issued the ruling suspending Mokua’s appointment.
Former Attorney General Justin Muturi had opposed the case, challenging the jurisdiction of the High Court to hear the petition.
Muturi submitted that the case should have been filed at the EACJ instead.
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