AG hopeful Kihara taken to task over repeat election ruling
What you need to know:
- High Court Judge George Odunga ruled that the appointment of returning officers and their deputies was illegal.
- But Justices Erastus Githinji, Fatuma Sichale and Martha Koome suspended the judgment even though it was a public holiday.
The president of the Court of Appeal has defended himself against accusations that he unfairly constituted a bench that suspended a High Court judgment that found the appointment of returning officers for the 2017 General Election illegal.
Justice Paul Kihara told the National Assembly Committee on Appointments that he constituted the three-judge bench on the basis of the law and in his capacity as the president of the court, rejecting claims that he had been influenced by the desire to pacify the August 8 poll.
“I am a believer in due process and, in this particular case, I acted within the law.
"The Court of Appeal and the Organisation and Administration Act is very clear on the powers of the president of the court,” he told the committee, noting that what a bench he has constituted does is not his problem.
ATTORNEY-GENERAL
However, the judge refused to discuss the matter in greater detail, telling the committee chaired by Speaker Justin Muturi, that it is a subject of the Judicial Service Commission inquiry and that delving into details will prejudice investigations against three judges of the court.
Mr Kihara was defending himself when he appeared before the committee, which was vetting his suitability for the office of Attorney-General.
On the eve of the October 26, 2017 repeat election, High Court Judge George Odunga ruled that the appointment of returning officers and their deputies was illegal.
However, the judge refused to quash the Gazette notice containing the names of constituency returning officers and the deputies, which would have meant that they would not have presided over the fresh election.
REPEAT ELECTION
But on the same day, Justices Erastus Githinji, Fatuma Sichale and Martha Koome suspended Justice Odunga’s judgment even though it was a public holiday and the registry of the Court of Appeal was closed.
The judges reasoned that the decision had the potential of rendering the repeat presidential election irregular even before it was held thus “precipitating another election outside 60 days in contravention of the provisions of Article 140(3) of the Constitution”.
National Assembly Majority Leader Aden Duale and his Minority counterpart John Mbadi had raised the issue asking whether the judge will deal with the investigations if he is picked to serve as AG, a position that makes him an automatic member of JSC.
INTEGRITY
Mr Mbadi told Justice Kihara that public confidence in him had sagged considerably after the incident and especially because the bench he formed had judges from three different stations.
The judge also rejected an invitation from MPs Peter Kaluma and Sabina Chege to decline the appointment because it will muddle his illustrious career as a judicial officer.
