Top court to resolve crisis in judiciary

The Supreme Court has moved to resolve a simmering crisis in the Judiciary following a Court of Appeal ruling that restricted the jurisdiction of some judges.

The highest court in the land has certified as urgent an appeal filed by Director of Public Prosecutions (DPP) Keriako Tobiko seeking to set aside the contentious appellate decision that judges of the Environment and Lands Courts (ELC) and Employment and Labour Relations Court (ELRC) have no jurisdiction over criminal cases.

Deputy Chief Justice Kalpana Rawal and Justice Mohammed Ibrahim suspended the implementation of the judgement that Law Society of Kenya (LSK) chairman Eric Mutua has termed “a bad one which should not remain in the law books”.

The two-judge bench said that Chief Justice Willy Mutunga will empanel the bench to hear the appeal, which will determine whether all judges have equal powers under the Constitution.

Mr Mutua said the judgement had created a rift between the judges of ELC, ELRC and those of the other divisions of the High Court.

“All judges are appointed from competent lawyers who have met all the requirements set out in the Constitution under Articles 162, 165 and 166. Upon going through rigorous examination by the Judicial Service Commission (JSC), those who qualify then are appointed as judges [and] are posted to the various segments of the High Court and the special courts,” Mr Mutua told the Sunday Nation.

He said LSK will be joining the DPP in challenging the judgement delivered on May 8, 2015 by Justice Hannah Okwengu, Justice Milton Makhandia and Justice Fatuma Sichale.

Presenting the application seeking to stay the implementation of the appeal judgement, the DPP said: “The judgement has serious ramifications which will lead to clogging the courts once again if the orders of the appellate judges are implemented.”

The office of the DPP argued: “The intended appeal shall raise constitutional and legal issues of paramount public interest and importance as the judgement of the court of appeal is likely to affect the outcome of thousands of appeals both pending and intended”.

The Supreme Court heard that appeals by three death row convicts, who challenged a two-judge bench order upholding the sentence imposed upon them, were some of more than 4,000 appeals that were handled during the Criminal Appeals Service Week in October, 2013, whereby 79 judges visited courts countrywide to hear and determine appeals arising from magistrates courts.

Three Malindi Court of Appeal judges declared a nullity a sentence delivered by a two-judge bench comprising Justice Christine Meoli and Justice Oscar Angote of the ELC.