Mongare v Attorney General & 3 others (Civil Appeal 123 of 2012) [2014] KECA 887 (KLR) (24 January 2014) (Judgment)

Facts

The case involved the constitutionality of the vetting process established in section 23 of the Sixth Schedule to the Constitution of Kenya 2010, which subjected the judicial arm of government to vetting while not providing for the vetting of other arms of government.

Issues

1. Whether section 23 of the Sixth Schedule to the Constitution of Kenya 2010 was unconstitutional and contradicted other substantive provisions of the Constitution.
2. Whether section 23 of the Sixth Schedule undermined the independence of the judiciary.
3. Whether the vetting process established in section 23 of the Sixth Schedule to the Constitution of Kenya was discriminatory.
4. Whether section 18 of the Vetting of Judges and Magistrates Act, No 2 of 2011 was unconstitutional to the extent that it sought retroactive application.
5. Whether the Bangalore and Latimer Principles could be said to be part of the general rules of international law.
6. Whether the vetting process provided for in the Vetting of Judges and Magistrates Act No 2 of 2011 violated the right to fair administrative action and the right to a fair trial.
7. Whether section 22(3) of the Vetting of Judges and Magistrates Act No 2 of 2011 was unconstitutional as it provided that the decisions of the Judges and Magistrates Vetting Board would not be subject to appeal.
8. Whether the provision of the right to seek review in section 22(1) of the Vetting of Judges and Magistrates Act No 2 of 2011 before the same panel, which made the decision against which review was being sought, was a violation of the right to a fair trial.

Reasoning

The court found that the vetting process is an integral and necessary part in the process of achieving an independent judiciary and does not violate the rights to fair trial and access to justice.

Outcome

Appeal dismissed.

Authorities cited