Activist Omtata sues JSC for appointing seven appellate judges for six positions

Milimani Law Courts, Nairobi.

Activist Okiyah Omtata has sued Judicial Service Commission (JSC) for appointing seven judges to fill six positions at the Court of Appeal

According to Omatata, only six vacancies were advertised but President Uhuru Kenyatta appointed seven judges as per Gazette Notice No. 8665 of 19th July 2022.

The Activist wants the court to suspend the said gazette notice.

The Judges include Justice Luka Kimaru, Lydia Achode, Fredrick Ochieng, John Mativo, Grace Ngenye, Aroni Abida Ali and advocate Paul Mwaniki.

Omtata wants the court to issue a temporary order to restraining the JSC, Attorney General and President, whether by themselves, or any of their employees or agents or any person claiming to act under their authority, from proceeding to give effect, howsoever, to Gazette Notice No. 8665 of 19th July 2022, including by swearing them into office or allowing the seven appointed to operate as Judges of the Court of Appeal.

However, the judges have already been sworn into office.

The activist argues that he is aggrieved that it is practically impossible under the Constitution of Kenya 2010 for the JSC to appoint seven individuals to fill six vacancies. “

“But if the vacancy really exists, then that one slot, the seventh, was deliberately hidden from the public to achieve improper motives or to advance corrupt practices,” Omtata claims.

JSC Impunity allegations

He added that the display of impunity by the JSC, where it announced six vacancies but recommended seven persons to be appointed to fill them, is unconstitutional and fatal to the entire recruitment.

In addition, Omtata claims there was lack of transparency and accountability since the interviews for the said positions were not done openly.

“The Interviews were not done openly, there is prima facie evidence in the eyes of the petitioner and interested public that the judges are solely not hired because of the courts they serve in,” He added.

In his petition, Omtata also sues JSC for failure to appoint judges from the Environment and Land Court and Employment court.

He avers that JSC has never appointed judges from the two courts to the Court of Appeal, despite the fact that appeals from decisions of the two courts go to the Court of Appeal.

“The Court of Appeal hears appeals from the two courts and judges of the two courts are equally, if not more qualified given their subject matter specialization, to hear appeals from decisions of the two courts respectively,” Omtata argues.

It is unacceptable that they are by default locked out of appointments to the CA simply because of the Courts they serve.