Chief Justice has no power to transfer judge, court rules

The Chief Justice has no powers to transfer a judge serving in the environment and lands court to another one of the status of a High Court, a three judge bench has ruled.

Judges Matthew Emukule, Said Chitembwe and Mugure Thande said on Friday that the law that gives the Chief Justice such powers is unconstitutional and there is need for it to be amended for clarity purposes.

The judges also ruled that the Chief Justice cannot appoint a magistrate to preside over cases involving land and environment issues in respect to any area of the county as a subordinate court.

Consequently, the judges quashed two gazette notices published on March 14 and 18 which paved way for a Chief Justice to do the above duties.

“In our considered view, jurisdiction is conferred by the Constitution and can only be extended likewise, it is not conferred by the administrative acts of the Chief Justice,” they said.

The Malindi Law Society (LSK) had sued the Attorney General and the Chief Justice in a case in which the LSK, the National Lands Commission and the National Assembly were listed as interested parties.

The Malindi lawyers’ body had challenged sections of the Statute Law Miscellaneous Amendments Act 2015 which relates to the transfer of Judges from the High Court to Courts of equal status and vice versa as well as the jurisdiction of the Magistrate courts, in respect to matters relating to environment and land.

The judges also ruled that Parliament can enact legislation conferring jurisdiction on subordinate courts, but it cannot establish any other court or local tribunal, similar to courts as well as purport to confer jurisdiction to a court which is not of equal status with the High Court.

They pointed out that this is what needs to be rectified before declaring Section 2 of that Act as inconsistent with other clear provisions of the Constitution.

They also said that court of equal status refers to a High Court and denied the assumption that the dispute implies disparity on judges’ qualifications.

“It is a question of what the Constitution provides in respect of jurisdiction of the High Court on one hand and the Courts of equal status on the other, there is no question that persons appointed to courts of equal status have the individual competences to preside over matters reserved to the High court and vice-versa,” they ruled.

The Environment and Land and Employment and Labour Relations Courts are considered to be superior courts with status equal to that of the High Court.

The law allows the Judicial Service Commission (JSC) to recommend to the President to appoint judges to preside over these two courts.

However, the law also allows judges for the two courts to have additional qualifications so as to be appointed.

According the sued parties, the Chief Justice had been granted the authority to carry out the transfers as an administrative function being the head of the Judiciary.
They also wanted the case dismissed terming it as an abuse of court process.

But nevertheless, the judges ruled that they had no objections to a Chief Justice assigning special duties to a judge and upheld the petitioners’ case.