Chief Justice nominee David Maraga is this morning set to be confronted with arguments that he lacks the competence and legal judgment to head the Judiciary, one of the three arms of government.
The argument, filed in the National Assembly by lawyer Bernard Kibet Sang, has been fronted by the family of David Kimutai Too, the Ainamoi member of Parliament who was gunned down by a police officer in Eldoret in January, 2008.
Mr Sang said in an affidavit sworn with Mr Tom Cheruiyot Biegon and filed in Parliament on Tuesday that Justice Maraga erroneously reduced the murder charge against Andrew Moeche, who killed Mr Too and Eunice Chepkwony, to manslaughter.
Justice Maraga’s ruling that Moeche was provoked and acted in self-defence did not go down well with the MP’s family, who preferred the death sentence for cold-blooded murder.
“This honourable House, through this honourable committee, has an opportunity to put the learned judge in his defence of the judgment,” said Mr Sang and Mr Biegon.
“Out of the learned judge’s decision, the families of the deceased, as well as the constituents of Ainamoi Constituency felt that justice was not served, and it is for this reason that they are opposed to the appointment of the nominee to the highest court and judicial office of justice.”
This, they said, was despite agreeing with the prosecution’s evidence that Moeche went hunting for his victims in West Indies Estate, which showed he had made up his mind and was clear in his mind that he was going to commit the act.
Justice Maraga enjoys support from the opposition and ruling Jubilee coalitions, expressed by Cord leader Raila Odinga and National Assembly Majority Leader Aden Duale.
But it is the Court of Appeal judge’s record on the Bench, his handling of the Moeche case and the backlog he allegedly created at the Eldoret court that have been cited by Mr Sang and Mr Biegon, as well as Mr Fredrick Onyancha, the authors of the two known objections filed in the National Assembly.
In the Moeche case, Mr Sang and Mr Biegon argued that Justice Maraga did a general analysis without pinpointing evidence to do with express or implied malice.
The advocate and his client also argued that Justice Maraga was wrong to conclude that Ms Chepkwony, with whom Moeche had a love affair, had entered into a relationship with Mr Too. They argued that fellow officers had said there was no such relationship between Moeche and Ms Chepkwony.
They also argued that the judge wrongly believed the allegation that Mr Too had claimed Moeche was spreading rumours that Ms Chepkwony had HIV/Aids. They added that he relied on hearsay and disregarded testimony that Ms Chepkwony and Mr Too did not train a gun on Moeche.