Chief Justice Martha has written to the Court of Appeal seeking the impeachment of President Uhuru Kenyatta over the failure to appoint six judges recommended by the Judicial Service Commission (JSC).

This she says is the solution to the violation of the Articles 3(1) and 166(1)(b) of the Constitution by the Head of State who has delayed appointing six of the forty judges nominated by the commission three years ago who she says should be held accountable for straining the functionality of the judiciary.

"It is proposed that the court makes a declaration that the President... is in violation of Articles 3(1) and 166(1)(b) of the Constitution. A declaration that the appropriate remedy for the violation of Articles 3(1) and 166(1)(b) of the Constitution is impeachment of the President or any other order that secures direct accountability of the President," she says in the court papers.

This may however prove to be a long legal process with only eight weeks left until President Uhuru is out of office and hence the proposed impeachment may not sail through, as well as the adjournment of Parliament till after the polls which would render the process stalled.

The Constitution stipulates that the impeachment for removal of a President requires one member of the National Assembly to table the matter in the house and must be supported by a least a third of all the members made up of 232 MPs.

 CJ Koome claims that the President is in violation of the constitution in two provisions, Articles 3(1) which states that "every person has an obligation to respect, uphold and defend this Constitution" and Article 166(1)(b), which states that "the President shall appoint all other judges, in accordance with the recommendation of the Judicial Service Commission".

President Kenyatta in his decision to turn down the recommendation stated that he was acting on information he had received from a  adverse National Intelligence Service (NIS) brief that alleged that the six judges were tainted on allegations of fraud.

Four of the judges including Justices George Odunga, Aggrey Muchelule, Prof Joel Ngugi and Weldon Korir had been recommended by the JSC to be elevated to the Court of Appeal while the other two, Chief Magistrate Evans Makori and High Court deputy registrar Judith Omange were recommended for promotion to be High Court judges.

The 40 judges were nominated in 2019 during the term of former JSC chairperson then-Chief Justice David Maraga who left office beginning of 2021, but President Uhuru appointed only 34 nominees in June 2021 and rejected the six over alleged integrity issues. One of them, Harrison Okeche, died during the pendency of the impasse.

A lobby group known as Katiba Institute filed a lawsuit seeking their appointment which was approved by a three-judge bench on October 21, 2021 directing the President to appoint the six nominees within 14 days from the date of the judgment, but the Head of State did not budge and still declined to appoint them.