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Court of AppealAllowedCivil Appeal (Application) E337 of 2022· [2022] KECA 770 (KLR)

Judicial Service Commission & another v Katiba Institute & 4 others

Court of Appeal
16 June 2022
4,978 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed judicial recruitment to continue, ruling that courts shouldn't halt independent commissions without proof of wrongdoing.

What this practically means

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Executive summary

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The Judicial Service Commission and the Chief Justice applied under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of conservatory orders issued by the High Court (Mrima, J) on 3rd June 2022 in Constitutional Petition No. E128 of 2022. The High Court had suspended further action by the JSC - including interviews of shortlisted candidates - on a petition by Katiba Institute challenging the propriety of recruiting 6 Court of Appeal and 20 High Court Judges while litigation over the appointment of six previously recommended Judges was pending. The Court of Appeal confined itself strictly to the impugned ruling, avoiding the pending appeals. It found the intended appeal arguable on whether a court may halt an independent constitutional commission from performing its mandate absent any allegation of impropriety or violation of law, noting that the real problem was the President's failure to appoint six recommended Judges, an extraneous issue pending before the Court of Appeal. On the nugatory limb, the Court applied its own decision in Tolphin Nafula, holding that the public interest and the cause of justice were best served by allowing the recruitment of much-needed Judges to proceed uninterrupted, particularly given impending election petitions; any ultimate invalidation of the process would be reversible since the High Court may yet invalidate even a concluded appointment. The application was allowed with no order as to costs given its public interest nature.

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal was not frivolous; it raised an arguable point on whether a court can halt an independent commission's constitutional mandate absent any allegation of impropriety or violation of law on its part.

Reasoning

The Court noted the JSC's mandate under Article 172(1)(a) and that no part of that mandate was said to have been violated. The real grievance concerned the President's failure to appoint six previously recommended Judges, an issue pending before the Court of Appeal with no bearing on the current recruitment. If the High Court was influenced by that extraneous issue, interference with its discretion was warranted.

p. 8
02

Nugatory aspect and public interest

Holding

Both arguability and the nugatory aspect were demonstrated, bolstered by public interest that the recruitment of much-needed Judges proceed uninterrupted pending determination of the petition.

Reasoning

Relying on Tolphin Nafula, the Court found the public interest and cause of justice best served by granting the application. If the appeal ultimately fails or the recruitment is impugned by a court of requisite jurisdiction, the situation is reversible. The 1st and 5th respondents failed to demonstrate the prejudice they would suffer if recruitment proceeded.

p. 8

Legal principles established

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  • An arguable point on a Rule 5(2)(b) application need not be one that will succeed, only one that merits consideration by the Court.
  • A court may not stop an independent constitutional commission from carrying out its mandate absent allegations of impropriety or violation of law; whether it can do so based on extraneous factors is arguable.
  • If a court grants conservatory orders of drastic dimensions influenced by extraneous matters, the appellate court is enjoined to interfere with that exercise of discretion.
  • Completion of a recruitment process does not immunize or whitewash procedural or substantive wrongs, since the High Court may yet invalidate even a concluded appointment.

Court orders

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  1. 1.Application for stay of execution of the High Court ruling and orders of 3rd June 2022 allowed
  2. 2.Stay of the conservatory orders suspending the JSC recruitment process pending the hearing and determination of the appeal
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 172(1)(a)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticles 22 and 23
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 23 and 24
  • Judicial Service ActSection 30 and paragraph 3 of the 1st Schedule
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • Peter Gatirau Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR

    Public interest principle in interlocutory applications, relied on by applicant counsel

  • Attorney General & Another v Tolphin Nafula & 5 others
    [2021] eKLR

    Near-identical case on conservatory orders against JSC recruitment; adopted its reasoning on nugatory aspect and public interest

  • Stanley Kangethe v Ketter and 4 others
    [2013] eKLR

    Principles for Rule 5(2)(b) applications - arguability and nugatory aspect

  • Dennis Mogambi Mang'are v Attorney General & 3 others
    [2012] eKLR

    Definition of an arguable point

On appeal from
High Court of Kenya at Nairobi
Constitutional Petition No. E128 of 2022
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Judicial Service Commission & another v Katiba Institute & 4 others", Case Analysis (2022). Civil Appeal (Application) E337 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/770/eng@2022-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.