The Kenyan High Court
has blocked the appointment of Zablon Muruka Mokua as a judge of the East
African Court of Justice (EACJ) after his selection was challenged by the Law
Society of Kenya (LSK).
The LSK argues that Dr
Mokua does not qualify for the position.
Justice Lawrence Mugambi
said the LSK had demonstrated that the petition was likely to be rendered
useless, as Dr Mokua was likely to be endorsed by the Summit of the Heads of
State of the East African Community (EAC) on Friday.
“A conservatory order is
hereby issued suspending any further consideration, deliberation, processing,
approval or appointment of the 3rd Respondent (Dr Mokua) as a judge of the East
African Court of Justice First Instance Division, pending the hearing and
determination of this application,” Justice Mugambi ruled on Wednesday.
Dr Mokua, who served as
a member of the County Assembly (MCA) of Kisii for Bassi Central Ward from 2017
to 2022, was nominated on April 18, 2024, by East African Community Cabinet
Secretary Peninah Malonza to replace Justice Charles Nyachae who resigned in
January.
But the LSK has
challenged his nomination arguing that he is not a jurist of recognised
competence worth being nominated as a judge and that the Judicial Service
Commission (JSC) was not involved in the process of his nomination.
The LSK informed the
court that the EAC Summit meeting has been scheduled for Friday, June 7, to
consider the proposed appointment of Dr Mokua.
“Petitioner has an
arguable case with high chances of success on the basis that the nomination of
the 3rd Respondent as a judge of the East African Court of Justice’s First
Instance Division was done in contravention of the Constitution,” LSK lawyer
Emily Osiemo told the court.
Justice Mugambi directed
the case to be heard before judge Chacha Mwita on June 21. The petition was
first heard by Justice Mwita, who directed the parties to file their
submissions ahead of the hearing on June 21.
The LSK also submitted
that CS Malonza has no constitutional mandate or authority to nominate a judge
for appointment.
According to the LSK, it
is the JSC that has the mandate to determine the suitability and eligibility of
a person worth being nominated as a judge.
Last month, Attorney
General Justin Muturi opposed the case, challenging the jurisdiction of the
High Court to hear the petition.
Mr Muturi submitted that
the case should have been filed at the EACJ instead.
In his curriculum vitae,
Dr Mokua says he is managing partner and head of litigation at Zablon Mokua
& Company Advocates. He is also a pastor at the Pentecostal Mission
Church-Kenya.
“The 3rd Respondent (Dr
Mokua) does not meet the requisite qualifications to be nominated as a judge of
a Superior Court in Kenya and subsequently as a Judge of the East African Court
of Justice’s First Instance Division,” the LSK said in the petition.
The court was informed
that Dr Mokua does not meet the minimum requirements for qualifications as a
judge of a superior court, in particular, the High Court, which is the
equivalent of the EACJ First Instance Division.
For one to qualify to
become a judge, he or she must possess the experience required irrespective of
whether that experience was gained in Kenya or another Commonwealth common-law
jurisdiction.
The candidate should
have at least ten years of experience as a superior court judge or
professionally qualified magistrate or at least ten years of experience as a
distinguished academic or legal practitioner or such experience in another
relevant legal field.
Further, the LSK said
the nomination process of Mr Mokua was shrouded in secrecy thus flouting the
national values and principles of governance of rule of law, participation of
the people, inclusiveness, equality, protection of the marginalised, transparency
and accountability.