CJ Martha Koome now asks court to dismiss case against President Uhuru Kenyatta

In an application submitted to the High Court, CJ Koome and the JSC have sought to have the case on judicial appointments dismissed, stating that it has been overtaken by events.

According to court papers, the CJ and JSC termed the petition by Katiba Institute as "bad law, fatally defective and an abuse of the process".

The senior judicial organs have further stated that they have no mandate to bar judicial officers from performing their duties, as was being sought by the Katiba Institute petition.

President Uhuru Kenyatta with Head of the Judiciary, Chief Justice Martha Koome Pulse Live Kenya

The application comes in the wake of heavy criticism against the Judiciary head over recent actions taken against judges.

CJ Koome has been criticized for what some have claimed to be complacency to defend the law enforcement and interpretation arm of government.

The most recent perceived attack on the Judiciary was the search and arrest of two High Court judges - Justices Said Chitembwe and Aggrey Muchelule.

Nairobi lawyer Ahmednasir Abdullahi is among those who criticized the CJ for not reacting to the matter immediately.

"Two judges were arrested by a police SWAT team... 8 hours later, the CJ @CJMarthaKoome, the DCJ Lady Mwilu, the Judicial Service Commission @jsckenya and the Chief Registrar of the judiciary @Kenyajudiciary are ALL TOO SCARED to even comment!" he remarked.

Chief Justice Martha Koome Pulse Live Kenya

While issuing his statement on the matter, CJ Koome insisted that she had not been informed on any charges which had been brought against the two judges.

“The two judges have notified me that they recorded statements at the DCI headquarters following a search of their chambers at the Milimani Law Courts. However, no formal report has been made to me as the Head of the Judiciary or Chairperson of the JSC.

"The arrest of the two judges has caused anxiety among judges and judicial officers. I assure all judges and judicial officers that the independence of the Judiciary and their constitutional duties is protected by the Constitution. They should therefore continue discharging their duties without any fear in accordance with their oath of office,” the statement read in part.

Judicial Appointments

President Kenyatta came under fire after he rejected six judicial appointments out of 40 which had been submitted to him for approval by the JSC.

Legal professionals read mischief into the rejection of six judges for appointment accusing the President of violating the constitution.

Katiba Institute, a lobby group, moved to court seeking to have President Kenyatta compelled to appoint all 40 judges who were recommended by JSC.

Court papers read: "That the Court issue a further order of prohibition stopping the Chief Justice and the Judicial Service Commission, their agents or anyone whatsoever from assigning duties to judges appointed from a partial list of the 40 nominees — contrary to the recommendation of the JSC in 2019 and the orders of this court in February 2020, pending hearing of the application and Petition."

The lobby group argues that, by leaving out six judges from the appointments, the President undermined the authority of the Judiciary.

The Institute has further argued that the Constitutional rights of the six judges will stand violated should the JSC proceed to swear them in.