CJ case may be heard by three-judge bench

A case challenging the decision by Chief Justice David Maraga to investigate and suspend magistrates could be heard by a three-judge bench.

Employment and Labour Relations Court judge Maureen Onyango yesterday directed parties to appear before Justice Stephen Radido on August 14. The judge will then decide if the matter will be heard by a bench.

The case was transferred to Justice Onyango on Tuesday by constitutional judge James Makau, arguing that the case was between an employer and employees.

Kenya Magistrates and Judges Association, through lawyer Danstan Omari, asked the court to give orders barring Maraga from further suspending any judicial officers until the case is heard and determined.

Omari said if the orders are not issued, thousands of magistrates and judges will suffer the same fate as others who have been suspended unlawfully.

However, judge Onyango certified the matter as urgent but ruled that it was too early to give any orders because those were just speculations and, in her opinion, no one will be suspended before the case is heard.

In the case, judges and magistrates want the court to suspend the implementation of some provisions of the Act by the Judicial Service Commission (JSC).

They want paragraphs 15, 16, 17, 20 and 25 of the Third Schedule of the Act suspended until the petition is determined.

According to them, the JSC is the agency mandated to investigate and suspend magistrates, not Maraga.

“The members of the KJMA are reasonably apprehensive of the unilateral exercise of such powers as it invites bias and abuse of such powers when dealing with serious issues touching on the conduct of magistrates, Kadhis or a judge,” they argue.

They say the sections tend to delegate the functions of the JSC to the Chief Justice illegally and in a manner not anticipated by the Constitution.

However, in their responses, the JSC and Maraga have opposed the petition, saying the court has no powers to interfere in internal disciplinary proceedings between them and their employees.

In their view, the JSC is a part-time commission with its members being fully employed in the judiciary, other government departments and agencies and in their full time employment.

The commission operates under the principles of the delegation as provided for in Section 14 of the Judicial Service Act.

Brian Khaemba, one of the magistrates affected by the process, was suspended by Maraga for giving orders favouring embattled Governor Ferdinand Waititu when he was being investigated.