Activist Okiyah Omtatah has moved to court seeking orders to suspend the appointment of Deputy Chief Justice Philomena Mwilu as the acting chief Justice by the outgoing Chief Justice David Maraga vide a letter dated 11th December 2020.
Omtatah wants the letter instructing Mwilu “to act as the Chief Justice and perform all duties and functions of Chief Justice from 12th December until a new Chief Justice is appointed in accordance with the Constitution of Kenya suspended on grounds that it has no legal basis.
“The matter is extremely urgent since the outgoing CJ David Maraga’s impugned letter REF: CJ/PERS was written on 11th December 2020 when the instant petition had been filed and the Court had issued directions on how it was to be handled”, claims Omtatah.
According to the activist, Maraga has no authority, mandate or capacity to appoint an Acting Chief Justice adding that he (Maraga) has not cited the law on the basis of which he is purporting to appoint the DCJ to be the Acting Chief Justice.
It is his submission that designating the DCJ as the Acting Chief Justice is unconstitutional given that it allows the DCJ to exercise full powers of the Chief Justice yet the appointment was done through a process which is not constitutionally permissible.
Omtatah claims that Maraga’s letter is unconstitutional for creating the position of Acting Chief Justice – a position not contemplated by the Constitution and there is no constitutional requirement that the outgoing Chief Justice should appoint or recommend a person for appointment as Acting Chief Justice.
“This Court do issue a temporary order of prohibition prohibiting the Deputy Chief Justice Philomena Mwilu and any other person howsoever acting, from acting or continuing to act as the Chief Justice of Kenya or giving effect in any way whatsoever to the David Maraga’s letter REF: CJ/PERS of 11th December 2020 pending hearing and determination of the petition”, says Omtatah.