Deputy Chief Justice (DCJ) Philomena Mwilu was on Monday enjoined in a case by MPs challenging a five-judge bench appointed to hear matters over an advisory by the Chief Justice (CJ) David Maraga to the President to dissolve Parliament.
In a ruling delivered by Justices Lydia Achode, Pauline Nyamweya, George Odunga, James Makau and Anthony Ndung’u, the bench enjoined Mwilu in the matter after the MPs through lawyer Ahmednasir Abdullahi questioned the manner in which she appointed them to hear the case.
“We have a problem with this bench since we want to know if the CJ has powers to delegate powers to another person,” said Ahmednasir.
The Attorney-General, through lawyer Emmanuel Bitta also said that he had difficulties with proceeding with the matter as they have not yet been served with the order by the DCJ appointing the five-judge bench.
“We have no information of what was the process the file moved from the High court to the DCJ leading to her appointment of the panel,” said Bitta.
The parties suggested that they enter a consent to have the matters be referred to the CJ to appoint a new bench to hear the cases.
The MPs wants another bench constituted saying that the current bench is unconstitutional.
According to them, the DCJ has no powers to appoint or assume the powers of the chief justice.
But Maraga through his lawyer James Ochien’g Oduol said that the judges have jurisdiction to hear and determine the matter challenging their appointment.
He said that the DCJ appointed the judges since his client, Maraga, could not appoint the bench as he is a respondent in all matters filed in court over his advisory.
Among those challenging the decision by Maraga are the National Assembly and Senate, citizens Leina Konchellah and Mohseh Abdul Munasah, Attorney-General, Third Alliance party and lawyer Adrian Kamotho Njenga.
The judges also consolidated all matters for purposes of hearing the application over their recusal and jurisdiction of the court to hear the 10 matters filed in court.
At the same time, several parties including the Federation of Women Lawyers, National Gender and Equality Commission and Kenya Human Rights Commission and activist Okiya Omtatah were also enjoined in the matter as interested parties.
The court directed the parties to exchange pleadings in the matters and file their submissions. The matter will be mentioned on December 17.
