Attorney General v Law Society of Kenya & 4 others (Civil Appeal 426 of 2018) [2019] KECA 283 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that judges elected to the Judicial Service Commission take office without Parliament's approval, and the President must appoint them promptly.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Warsame JA, as the elected representative of Justices of the Court of Appeal, was subject to vetting and approval by the National Assembly before assuming his position as a JSC commissioner
- 2.Whether section 15(2) of the Judicial Service Act is unconstitutional for failure to require that all persons elected and nominated as JSC Commissioners be subject to approval by the National Assembly
- 3.Whether section 15(2) of the Judicial Service Act is unconstitutional for giving a role to the President in the appointment of elected commissioners of the JSC
Key legal issues
#Whether an elected JSC commissioner requires National Assembly approval under Article 250(2)
No. Article 171(2) specifically provides for election of judges' representatives to the JSC; by virtue of Article 248(1), Chapter 15 applies only to the extent the Constitution does not provide otherwise, so the NA approval requirement applies only to commissioners appointed under Article 171(2)(h).
The court harmonised Articles 171, 248 and 250. Article 248(1) applies Chapter 15 'except to the extent that this Constitution provides otherwise'. Article 171 specifically provides the composition and mode of identification (election) of JSC members, so no national legislation prescribing identification is needed and Article 250(2)'s approval step does not attach to elected commissioners. Parliament itself, in section 15 of the JSA, recognised this by subjecting only the two public representatives under Article 171(2)(h) to vetting.
Whether section 15(2) of the Judicial Service Act is unconstitutional for failing to require NA approval of elected commissioners
No. Since Article 250(2) does not apply to elected commissioners, section 15(2) cannot be invalid for not imposing that requirement.
A statute is unconstitutional only where it violates or contradicts a clear constitutional provision that cannot be reconciled with it. Having held that Article 250(2) does not govern elected JSC commissioners, the court found no constitutional standard which section 15(2) offends by omitting vetting. The court also noted the anomaly of the AG and NA asserting that Parliament enacted unconstitutional legislation.
Whether section 15(2) is unconstitutional for conferring a role on the President in appointing elected commissioners
No. The President's role is a formal, mandatory appointment exercised as Head of State under Article 132(4); it confers no nomination or veto power and any delay attracts legal consequences.
Article 132(4) mandates the President to perform executive functions conferred by the Constitution and legislation. Section 15(2) merely directs that names of elected nominees be sent to the President for formal appointment within three days; it confers no discretion. The constitutional architecture contemplates the President performing such formal duties, and no mischief requiring the section's removal was demonstrated.
Independence of the JSC and the Judiciary from executive and legislative intrusion
The independence of the JSC is guaranteed under Article 249(2)(b) of the Constitution; the special architecture of Article 171, limiting presidential appointment to the two lay members, was a deliberate choice to protect judicial independence.
The court endorsed the trial court's historical reading: the composition of Article 171(2) reflects the people's wish to break from a past in which the JSC was composed of unknown persons and the judiciary was subjected to external control. The independence clause shields commissions from improper influence by other institutions of government, and the court found the AG's push for vetting of an elected judge troubling in that light.
Legal principles established
#- A Judge of the Court of Appeal elected under Article 171(2)(c) as the Court's representative to the Judicial Service Commission assumes office upon election and formal appointment, without vetting or approval by the National Assembly
- Article 248(1) exempts commissions whose composition and appointment the Constitution specifically provides for; Article 171(2), being specific, displaces the general vetting regime in Article 250(2) for elected JSC commissioners
- Section 15(2) of the Judicial Service Act is constitutional; the President's function thereunder is a formal, non-discretionary appointment within three days, performed as Head of State
- Constitutional provisions must be construed holistically, each provision sustaining rather than destroying the other
Court orders
#- 1.Main appeal by the Attorney General dismissed
- 2.Cross appeal by the Law Society of Kenya dismissed
- 3.Findings and orders of the High Court upheld
- 4.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Constitutional & Human Rights Division
- Petition No. 106 of 2018 (consolidated with Petition No. 109 of 2018), Law Society of Kenya vs. Attorney General & another; Mohamed Abdulahi Warsame & another (Interested Parties) [2019] eKLR
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Appellate Jurisdiction Act, Cap 9 (the court noted the jurisdictional oddity of sitting over a dispute concerning its own JSC representative, raised by counsel but proceeding by consent of all parties)
- Consolidated with
- Petition No. 109 of 2018 (Samuel Njuguna v Attorney General, National Assembly & JSC)
Relief refused
#AG's declaration that elected JSC commissioners are subject to parliamentary approval under Article 250(2)
Article 171(2) is a specific constitutional provision on JSC composition that displaces the general Chapter 15 requirements via Article 248(1)
AG and SN's declaration that section 15(2) of the Judicial Service Act is unconstitutional for omitting NA approval
A provision cannot be unconstitutional for failing to require what the Constitution itself does not require of elected commissioners
LSK and JSC's declaration that section 15(2) is unconstitutional for giving the President a role in appointing elected commissioners
The President's role under section 15(2) is formal and mandatory, an exercise of Head of State functions under Article 132(4)
LSK's cross-appeal declarations that the President has no role in appointment of elected members and that section 15(2) is unconstitutional to that extent
Cross appeal found to have no merit
Costs
Each party shall bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That reasoning brings us to the conclusion, on the 1st issue, that Warsame, JA, having been elected by his peers as a member of the JSC, was not subject to approval by the National Assembly. We so hold.
A provision of the Constitution cannot be unconstitutional.
A statute or statutory provision is unconstitutional if it violates or contradicts a clear provision of the Constitution to the extent that it cannot be reconciled with the offended Article.
It does not confer any discretion on the President once he receives the names. He is under legal obligation to appoint the nominee(s) within three days of receipt of the name(s).
The upshot is that the main appeal has no merits and is hereby dismissed. The cross appeal similarly has no merits and is hereby dismissed. The findings and orders of the High Court are hereby upheld. Each party shall bear its own costs.
Issues in the judgment
#The memorandum of appeal and submissions refer inconsistently to 'section 15(2) of the Judicial Service Commission Act' whereas the statute under challenge throughout is the Judicial Service Act, 2011
The judgment jumps from paragraph numbering 54-55 to paragraph 57, omitting a numbered paragraph 56
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Law Society of Kenya & 4 others (Civil Appeal 426 of 2018) [2019] KECA 283 (KLR)", Case Analysis (2019). Civil Appeal arising from Petition No. 106 of 2018 (High Court, Constitutional & Human Rights Division); cross appeal by LSK. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/283/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.