[2011] KEHC 4291 (KLR)

[2011] KEHC 4291 (KLR)

The court held that the applicants had established a prima facie case raising serious constitutional questions regarding the legality and constitutionality of the President's nominations to the offices of Chief Justice, Attorney General, and Director of Public Prosecutions, as well as the reappointment of the...

Source-derived case information.

Citation
[2011] KEHC 4291 (KLR)
Parties
Applicant: Muslims for Human Rights (MUHURI); Applicant: Khelef Abdulrahaman Khalifa; Applicant: Ndungu Wainaina; Respondent: The Hon. Attorney General; Respondent: The Judicial Service Commission; Respondent: The Director General, National Security Intelligence Service
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
23 February 2011
Case Number
Petition 7 of 2011
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders
Outcome
Conservatory orders granted in part; application against the 3rd Respondent dismissed; petition certified as urgent and referred for empanelment of a constitutional court.
Legal Topics
State Officer Appointments, Judicial Service Commission Powers, Transitional Provisions, Public Participation, Separation of Powers
Source Language
english
Constitutional Law Administrative Law State Officer Appointments Judicial Service Commission Powers Transitional Provisions Public Participation Separation of Powers

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Summary, issues, holding and outcome

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Parties

Muslims for Human Rights (MUHURI)

Applicant

Khelef Abdulrahaman Khalifa

Applicant

Ndungu Wainaina

Applicant

The Hon. Attorney General

Respondent

The Judicial Service Commission

Respondent

The Director General, National Security Intelligence Service

Respondent

Procedural Posture

Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders

Legal Issues

  1. 1 Whether the President's nominations to the offices of Chief Justice, Attorney General, and Director of Public Prosecutions complied with the Constitution and transitional provisions.
  2. 2 Whether the reappointment of the Director General, National Security Intelligence Service, was lawful under the Constitution.
  3. 3 Whether the Judicial Service Commission was required to play a role in the nomination process for Chief Justice during the transitional period.

Ratio Decidendi

The court held that the applicants had established a prima facie case raising serious constitutional questions regarding the legality and constitutionality of the President's nominations to the offices of Chief Justice, Attorney General, and Director of Public Prosecutions, as well as the reappointment of the Director General, National Security Intelligence Service. The court found that if conservatory orders were not granted, the petition would be rendered nugatory, as the appointments could be finalized and approved by the National Assembly, making it impossible for the court to grant effective relief. The court exercised its discretion to grant conservatory orders restraining the...

Court Disposition

Conservatory orders granted in part; application against the 3rd Respondent dismissed; petition certified as urgent and referred for empanelment of a constitutional court.

Orders

  • Conservatory order restraining publication of the name of Justice Alnashir Visram as nominee for Chief Justice pending hearing and determination of the petition.
  • Conservatory order restraining the Attorney General from presenting or publishing names of any person, including Prof. Githu Muigai and Kioko Kilukumi, as nominees for Attorney General or Director of Public Prosecutions pending hearing and determination of the petition.