• Through his lawyer Philip Nyachoti, Muya terms the application by the JSC as hopeless, incompetent and does not meet the threshold of a preliminary objection.
Suspended judge Martin Muya has objected to an application by the Justice Service Commission to refer his matter to Employment and Labour Relations Court.
When the matter came for hearing on Friday, Muya who is challenging a JSC decision to remove him from office and the formation of a tribunal to investigate his conduct, said the constitutional court is best suited to hear and determine the matter.
Through his lawyer Philip Nyachoti, Muya terms the application by the JSC as hopeless, incompetent and does not meet the threshold of a preliminary objection.
He says that the Employment and Labour Relations Court has a mandate to handle matters arising from the disputes between an employee and employer and not a matter such as his.
“This matter has nothing to do with employment because the role of the JSC is a pure imperative of the Constitution," Nyachoti said.
He wants an objection by the JSC to be struck out and the matter proceeds at the constitutional division.
Muya says that his petition raises five heavy constitutional issues that cannot be determined by an employment court.
The judge said he was not accorded a fair hearing and a right to fair administrative action before he was removed from office.
“The report that the JSC relied on to remove me from office is full of inconsistencies and could not warrant my removal from office,” he said.
JSC wants a case referred to the Employment and Labour Relations Court saying the constitutional division has no jurisdiction to hear it.
But Nyachoti said referring the case would result into bringing the President as a party to the case and, with him not being the employer of the judge, he cannot be sued in an Employment and Labour Relations Court through the Attorney General.
"On the issue of jurisdiction of the High Court to hear and determine the petition hearing, we submit that the procedure for removal is not in respect of an employer and employee relationship," read the court papers.
"More so, since the committee’s report and recommendations do not substantively interfere with employment or otherwise of the petitioner."
The judge asked the court to dismiss the preliminary objection on jurisdiction filed by the commission. He faulted the JSC recommendation, saying it was “fundamentally flawed, fatally and incurably defective and, therefore, wanting in validity and reliability.”
Muya further seeks an order declaring the tribunal formed by President Uhuru Kenyatta invalid.
(Edited by P. Wanambisi)