The High Court on Tuesday barred the Judicial Service Commission (JSC) from presenting its case on whether the cases filed by Deputy Chief Justice Philomena Mwilu and Justice Ibrahim should be stayed.
The commission’s lawyer, Issa Mansur, said he would argue the commission’s case using existing judgment and the law.
Senior lawyer Paul Nyamodi supported Mansur’s argument. He said JSC was the main party in the case and urged the court to allow all parties to give their side of the story, as the cases involved senior judges.
Nyamodi was representing Dari Limited and former Rarieda Member of Parliament Raphael Tuju, who are among those who want an overhaul of the apex court.
Nevertheless, the judge held that none of the parties who did not follow his directive to file submissions would be allowed to present their case.
“Any party that has not filed written submissions or skeleton shall not be permitted to highlight as they have nothing to highlight. However, any list and bundles of authorities be considered,” said Justice Bahati Mwamuye.
In the meantime, lawyer Nelson Havi argued that the court erred by stopping a constitutional process.
They have relied on a High Court ruling by Justices Eric Ogola, Freda Mugambi, and Anthony Mrima, which allowed Parliament to complete the impeachment process for the former Deputy President Rigathi Gachagua.
He said the court should exercise restraint as no decision had been made to send the judges’ files to the President to empanel a tribunal to remove or dismiss the petitions.
Havi had also petitioned to remove all the seven Supreme Court Judges.
At the same time, Havi said that the cases are not novel and do not require more than one judge to decide. He said that judges have been removed under similar circumstances in the last decade.
According to him, Chief Justice Martha Koome is one of the petitioners. He claimed it would be absurd for her to appoint a bench. He added that she would choose a bench accused of bias or decline to appoint one, halting the cases in perpetuity.
“The question of removal of judges has been undertaken under this constitution for the last 10 years. We urge the court to strike out the petitions and do not certify these petitions as raising novel issues,” argued Havi.
In support of Havi’s case, Nyamodi argued that Justice Mwilu had filed a preliminary objection before the commission beside the case.
He said she knew that JSC had the power to entertain the petitions for her removal.
“The petitioner is trying to burn the candle from both ends. The petitioner knows too well that the body to determine the issues is the Judicial Service Commission, and that is why she filed a preliminary objection at the time she filed the petition,” said Nyamodi.
Nyamodi argued it would be improper for the court to review the JSC’s decision as it would interfere with an independent commission’s processes.
He, however, disagreed with Havi on CJ’s powers to empanel a bench.
The senior lawyer said that if the court perceives the issues as weighty, he should certify the case for empanelment.
jmuthoni@standardmedia.co.ke
JSC barred from preliminary hearing in DCJ Mwilu and Justice Ibrahim cases
He said that Havi misinterpreted the law, as the CJ does not control judges’ decisions regarding how to hear and determine a case.
“ We ask the court to dismiss the preliminary objections and certify the case for empanelment of three judges or more,” argued Kemboy.
The Kenya Magistrate and Judges Association (KMJA) supported Justices Mwilu and Ibrahim. Its lawyer, Wathuta Mwangi, said that the commission has failed to enact procedures for removing judges for three years.
“ The petition is being processed by a commission which has violated a court order,” said Wathuta.
