Kenyan lawyers argue that Zablon Muruka Mokua does not qualify for the job.
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.