Judge Martin Muya on Wednesday morning appeared before the Supreme Court seeking to have the decision of the tribunal that recommended his removal from office overturned.
The judge, through lawyer Phillip Nyachoti, told the apex court judges that the Judicial Service Commission (JSC) did not have the requisite jurisdiction to initiate his removal.
Last year, a seven-member tribunal chaired by Justice Alnashir Visram presented its report to President Uhuru Kenyatta recommending Muya’s removal.
The tribunal concluded that Justice Muya was guilty of gross misconduct for delaying for five months reasons for his ruling dated May 30, 2017 in a commercial row pitting Kipsigis Stores against NIC Bank.
“…..as regards order 40 rule 5…we submit that a ruling was delivered on May 30, 2017 after the hearing of the application on April 5, 2017…that duration was actually less than two months or thereabout,” argued lawyer Nyachoti.
Upon being asked by Justice William Ouko whether the reasons for the judgement were issued, Nyachoti said the reasons were finally issued on November 3.
The court was told that the tribunal ignored the principle of fair administration and made a wrong decision adding that there was a delay in giving the reasons to its findings hence Muya was not given a fair trial.
Nyachoti further submitted that the court file was never available before the respondents during the hearing of the complaint at the tribunal.
“There was no valid petition before the JSC…I urge you to allow the appeal,” Nyachoti submitted.
The tribunal, through State counsel Oscar Eredi, however asked the judges to dismiss Muya’s appeal saying the reasons given by the judge for delaying to give its reasons were not sufficient.
“What the judge should have done was to give a schedule of the ruling and judgment…if he had a lot of backlog he should have given a schedule, he never did that,” he argued.
Lawyer Eredi submitted that the reason given by Judge Muya that he was in a busy station was not enough.
On the issue of the missing file, Eredi said the judge was asked and confirmed that he would proceed without the file, hence that he was basically accorded a fair administrative action by the JSC and the tribunal.
“The argument that there was no petition before the JSC is unfounded and therefore should be dismissed,” the court was told.
“One of the reasons for the removal of the judge is the issue of competence and gross misconduct…the totality of the allegations on the judge refusing to give reasons of the ruling amounts to gross misconduct and that’s why the tribunal came to the conclusion that he was to be removed from the Judiciary because of misconduct,” the court was told.
The judgement on the case will be issued on notice.
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