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| Judges sacked by JMVB can now appeal at the High Court, Court of Appeal made the ruling on Wednesday |
By Isaiah Lucheli
NAIROBI, KENYA: Judges sacked by the Judges and Magistrates Vetting Board (JMVB) yesterday got a reprieve after the Court of Appeal ruled that they can challenge the decision at the High Court.
The appellate judges dismissed an assertion by the Law Society of Kenya (LSK) that the vetting of judges and magistrates was a no-go zone for the Judiciary (High Court).
The ruling by the judges has given hope to former judges of the Court of Appeal and High Court who were found unsuitable.
They include justices Riaga Omolo, Samuel Bosire, Joseph Nyamu, Emmanuel O’Kubasu and Jeanne Gacheche, who have pending cases at the High Court.
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In their verdict, the appellate judges agreed with lawyer Paul Gicheru that the vetting board was a creature of statute and not a constitutional body, and fell directly under the High Court’s supervisory jurisdiction under Article 165(6) of the constitution.
High Court judges Patrick Kiage, James Odek and Jamila Mohamed dismissed the application by LSK while justices Agnes Murgor and Fatuma Sichale gave dissenting rulings.
“I say this wholly mindful of the inherent good that the vetting process embodies but equally aware that the road to hell is paved with good intentions.
“Our shared desire for a clean efficient and responsive Judiciary cannot justify a trampling underfoot of the rights of those who occupied the seats we occupy today,” said the judges.
In his submission, Gicheru had said the High Court was right in its determination on jurisdiction based on the extensive consideration of common law jurisprudence, which is against applications that offended the bill of rights or rules of natural justice.
“The High Court has residual jurisdiction under Article 16(3) to determine whether the statute enacted by Parliament to govern the vetting process was inconsistent with or in contravention of the constitution,” submitted Gicheru.
The counsel had urged the judges to uphold the ruling by the High Court, saying “rulings do not come better than this”.
High Court judges Jonathan Havelock, Eric Ogola, Pauline Nyamweya, Alfred Mabeya and Joseph Mutava in their ruling last year restrained the president from degazetting three Court of Appeal judges and a High Court judge.
The bench further ruled that the High Court had jurisdiction to hear cases filed against the board and review verdicts arrived at by it if they infringed the fundamental rights of the petitioners or contravened the law.
