LAW SOCIETY OF KENYA V. CENTRE FOR HUMAN RIGHTS AND DEMOCRACY, RICHARD ETYAN'GA OMANYALA, FRANCIS RANOGWA OZIOVA, JUDGES AND MAGISTRATES VETTING BOARD, ATTORNEY GENERAL, JUDICIAL SERVICE COMMISSION, MOHAMMED IBRAHIM, ROSELYN NAMBUYE, JEANNE GACHECHE, RIAGA OMOLO, SAMUEL BOSIRE, JOSEPH NYAMU, KENYA MAGISTRATES AND JUDGES ASSOCIATION & E.O' KUBASU

RULING OF THE COURT

, A.K. MURGOR, JA(DISSENTING)

The facts and proceedings relating to the application are as set out in the lead judgment of Kiage JA, and as such I do not deem it necessary to enumerate the entire narrative.

Introduction

At the core of this application is the issue whether the High Court has jurisdiction to review the decisions of the Vetting of Judges and Magistrates Board (“the Vetting Board”), despite the existence of the ouster clause in Section 23 (2)of the Sixth Schedule of the Constitution.

In order for this issue to be determined, it is important that the surrounding circumstances be considered in context.

Background and Historical context

Following almost two decades of political agitation for a new constitution, the people of Kenya finally voted for a new constitution through a national referendum held on 4^th August 2010.In accordance with Article 263, the Constitution of Kenya 2010 was promulgated, and came into force on 27^th August 2010, and was to usher in a n…