Sacked judges criticise top court

What you need to know:

  • The ruling of a five-judge bench of the High Court to determine the legality of the Supreme Court decision is likely to create confusion in legal circles, given that a lower court is bound by a higher court’s decision.
  • The Law Society of Kenya and the Judges and Magistrates Vetting Board, however, defended the Supreme Court, saying they were justified in ruling that the courts have no jurisdiction to review the board’s decision to send some judges home.
  • Lawyer Charles Kanjama said it was wrong for the High Court to allow applications by the sacked judges seeking a review of the Supreme Court and that they must respect the hierarchy of courts.

Judges found unsuitable by the vetting board have accused the Supreme Court of giving conflicting decisions that stopped them from pursuing their rights.

Their lawyers, Mr Stephen Mwenesi and Mr John Khaminwa, argued that it was wrong for the Supreme Court to rule that the High Court has jurisdiction to address rights violations while denying the judges an opportunity to file similar claims.

“The Supreme Court upheld a High Court decision that the vetting board has no jurisdiction to question the conduct of judges appointed after the promulgation of the Constitution. But in the case of the sacked judges, they ruled that the High Court has no power to supervise the vetting board,” said Mr Mwenesi.

PRONOUNCEMENT

He argued that the Supreme Court was unfair to close the door for the sacked judges and that what they did was not a judgment, but a pronouncement.

He was making submissions during the hearing of petitions by sacked judges challenging the legality of a decision by the Supreme Court on their fate.

The ruling of a five-judge bench of the High Court to determine the legality of the Supreme Court decision is likely to create confusion in legal circles, given that a lower court is bound by a higher court’s decision.

Dr Khaminwa argued that the Supreme Court shifted from known legal practice and ended up giving a conflicting decision which cannot be binding to lower courts.

“The decision has three concurrent opinions with no mention of the person who wrote the main portion. It is like the Supreme Court developed cold feet when dealing with the issues of other judges,” said Mr Khaminwa.

JUSTIFIED IN RULING

The Law Society of Kenya and the Judges and Magistrates Vetting Board, however, defended the Supreme Court, saying they were justified in ruling that the courts have no jurisdiction to review the board’s decision to send some judges home.

Lawyer Charles Kanjama said it was wrong for the High Court to allow applications by the sacked judges seeking a review of the Supreme Court and that they must respect the hierarchy of courts.

“It is not open to a lower court to question the decision of a higher court. Not everyone agrees with the Supreme Court, but in view of its finality, everyone must agree and abide by its findings,” said Mr Kanjama.

He said the High Court should be guided by the Supreme Court and the best they could do was to dismiss the applications.

Senior Counsel Paul Muite, representing the Judicial Service Commission, argued that the applications had put the High Court in an difficult situation.

“Courts have a duty to safeguard public funds and to allow the cases to go on with an order stopping their removal still in force means the judges continue earning salaries at the expense of the taxpayers,” said Mr Muite.

The Supreme Court in November ruled that their former colleagues were fairly sacked and that the High Court has no jurisdiction to review the decisions.

The ruling ended the careers of former Appellate judges Riaga Omollo, Samuel Bosire, Joseph Nyamu and Emmanuel O’Kubassu. Others were High Court judges Jean Gacheche, Mary Ang’awa, Murugi Mugo, Grace Nzioka, Leonard Njagi and Muga Apondi.