President Uhuru Kenyatta has failed to appoint High Court judges who were part of a bench that declared the Building Bridges Initiative (BBI) bill null and void to the Court of Appeal.

In a Gazette Notice published on Thursday, June 3, Uhuru appointed 34 judges that had been recommended for appointment by the Judicial Service Commission.

What caught the eye of many lawyers, however, was his decision to leave out six judges including some who sat on the bench that dismissed the BBI bill.

The judges rejected for their promotions are Justices Weldon Korir, Aggrey Muchelule, George Odunga and Prof. Joel Ngugi, Makori Evans Kiago and Judith Omange Cheruiyot.

The 5-judge bench which declared BBI as null and void, on Thursday, May 13, 2021

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Justice (Prof) Joel Ngugi was the Presiding Judge sitting with Justice George Odunga, Justice Jairus Ngaah, Justice Chacha Mwita, and Lady Justice Teresia Matheka on a five-judge bench that delivered the ruling on the BBI Constitutional Amendment Bill 2020 on Thursday, May 13.

Ngugi is a graduate of the Nairobi University where he studied in 1996 before he proceeded to the Kenya School of Law in 1997 for a Postgraduate Diploma in Law. 

Afterwards, he went to Harvard University where he obtained an LL.M. in 1999 and an S.J.D. in 2002.

The court of appeal judges who have been appointed include; Mbogholi Msagha, Omondi Hellen, Ngugi Grace, Francis Tuiyott, Pauline Nyaboke, Jessie Lesiit and Kibaya Laibuta.

Speaking to Kenyans.co.ke, respected Nairobi Lawyer Areba Omwoyo Samba welcomed the appointment noting that it would go a long way in speeding up the dispensation of justice.

"I welcome the appointment of the 34which is good, it will help in reducing the backlog that we have," stated Samba.

He, however, had an issue with Uhuru's decision to exclude the four judges.

"I feel it is not right for the President to leave other names out more so the judges who presided over the BBI case. In leaving out other names, the president has demonstrated that he doesn't respect the rule of law.  

"If we are to build our country, we all have to respect the law and the president should lead from the front," he added.

Elgeyo Marakwet Senator Kipchumba Murkomen, on the other hand, termed the exclusion as a blatant violation of the Constitution by the President.

"Congratulations to all the Judges whose appointments have been confirmed after needless and inordinate delay. In a blatant violation of the Constitution the President is using the opportunity to punish Judges he doesn’t like and this is a very dangerous path. He is setting a bad precedent," he stated. 

Professor Makau Mutua challenged the gazetted judges to decline the appointment noting that it was not the Head of State's best move to exclude some of their nominated colleagues.

"BBI judges Joel Ngugi and George Odunga have been denied elevation to the Court of Appeal. Mr. Kenyatta can’t choose which provisions of the Constitution to obey, or disregard. Gazetted judges should decline their appointment until all JSC-recommended judges are included," he explained.

President Uhuru Kenyatta (left) with ODM leader Raila Odinga (right) at the Jomo Kenyatta International Stadium in Kisumu during the Madaraka Day celebrations on June 1, 2021 PSCU