Katiba institute loses appeal against appointment of three JSC members

The Supreme Court of Kenya.

The court of appeal has dismissed an appeal by Katiba Institute on the appointment of three Judicial Service Commission members.

The institute was challenging the high court decision which was in favour of the respondents, Olive Mugenda, Felix Koskei and Patrick Gachochi.

Appellate judges W. Karanja, Asike Mukhandia and Fatuma Sichale dismissed the appeal on grounds that it lacked merit. However, the court allowed a cross appeal.

“We find the appeal devoid of merit it. The cross appeal is nonetheless allowed” ruled the judges.

Dissatisfied with the ruling, the institute said it will appeal the decision to the Supreme Court.

Through lawyer Dudley Ochiel, Katiba said the three judge bench segregated the constitution and refused to give the meaning of requirements on merits.

“We will appeal the judgment to the Supreme Court. The Court of Appeal segregated the Constitution and refused to give any meaning to the requirements on merit and fair competition” Ochiel noted.

On the cross appeal, the judges confirmed vetting of Patrick Gachohi and Olive Mugenda was not pleaded and was never canvassed and it appeared the judge raised it himself and went on a tangent to discuss it at length and made determination without having been addressed on the issue by any of the parties.

Katiba Institute filed a petition on 8th March 2018 challenging the appoint the three as members of the JCS saying they lack qualifications to be members.

The institution also wanted the court to prohibit the president from appointing and gazetting them as members of JSC and by extension barring them from taking oath as commissioners.

Ochiel argued that the appointment of Gichochi was null and void as his nomination was done by the president instead of public service commission and he previously held public office hence not competent nominee or appointee.

He added the appointment of the three who are currently discharging their duties as commissioners of the body mandated to vet judges was not done on the basis of fair competition and merit, contrary to the law.

He added that despite the evidence on record questioning the character and integrity of Olive Mugenda while acting in other capacities previously holding public office, the evidence was disregarded