Lawyers Ham Kiplimo Langat and Felix Kiprono for Brian Kipkorir Ng’etich who is seeking to stop the judicial service commission (JSC) from proceeding with the hearing of allegations on Justice Philip KiptooTunoi of the Kenyan Supreme Court outside Milimani law courts on Monday February 1, 2016.
BY KURIAN MUSA.
High Court has declined an activist’s application to stop the JSC from investigating Supreme Court judge Philip Tunoi over bribery allegations labelled against him.
Justice Mumbi Ngugi said the application was not urgent as the probe by a committee of the Judicial Service Commission has begun.
This after a human rights ambassador moved to court on Monday seeking to stop the judicial service commission (JSC) from proceeding with the hearing of allegations on Justice Philip KiptooTunoi of the Kenyan Supreme Court.
Brian Kipkoror Ng’etich through his lawyers Kiplimo Langat and Felix Kiprono filed a petition that could alter the course of JSC into a probe of the beleaguered judge.
The 72 years old Judge is alleged of taking bribe in exchange of a favorable ruling for Nairobi Governor Evans Kidero against his main Challenger Ferdinand Waititu.
On Monday, Mr Ng’etich sought conservatory orders from the constitutional court at Milimani High Court in Nairobi, saying the process by JSC would offend the independence of the judiciary and the constitution.
He wants the court to stop the Committee set to hear from Justice Tunoi from taking off its task.
“The said process sets a dangerous precedent,” the petitioner’s affidavit reads, adding:“There is need this court move with speed as a custodian of the majesty of the constitution and strike a blow for the twin principles of constitutionalism and the rule of law by halting any further blatant and unconstitutional process of the Judicial Service Commission’s unknown agenda.”
Mr Ng’etich, further said on 27 January 2016, the JSC set stage to investigate Justice Tunoi
Before Justice Joseph Oguto, the case was filed, its states that the Commission had received a similar petition from the Law Society of Kenya on January 21, 2015 against Justice Mohamed Ibrahim, Justice Jackton Boma Ojwang’, and Justice Njoki Ndu’ng’u, but chose to act on Justice Tunoi case selectively.
“The said judge is being victimized and discriminated for discharging his legal duty as per the law,” Ng’etich said in his sworn statement.
The petitioner further expressed fear that the said JSC Committee based on the first impression unconstitutional.
He wants the court to interpret the bill of rights in regard equality, integrity, open and democratic governance and freedom from non-discrimination of the impugned Supreme Court judge.
In the petition, the court is reminded that in the Evans Odhiambo Kidero case versus Ferdinand Waititu and four others all the seven judges of the Supreme Court sat and made a ruling.
Adding that Geoffrey Kiplangat affidavit to JSC under the helm of Chief justice Willy Mutunga jump started a probe against Justice Tunoi only.
The affidavit drawn by Ham Lagat advocates before Justice Joseph Onguto opines that:“The constitution of Kenya requires that public officers should be protected against victimization and discrimination.
” Noting that the JSC has failed in its mandate of ensuring judicial independence, protection of judicial officers and non-discrimination.
The petitioner states that the logical conclusion from the state of affairs in the in setting a committee against one judge whilst there are pending allegations against other judges in the Supreme Court is discriminatory and in breach of article 27 and 234 of the constitution and thus invalid within the meaning of article 2(4) of the constitution.
The petitioner said the JSC committee process to probe judge Tunoi is a judicial misconduct and the complaints maybe further abused at the expense of the judiciary integrity and independence.
“It stands as dragon that threatens to consume the judiciary wholly and further the unconstitutional acts. This sets in motion foundations of blatant disregard for the constitution,” said Ng’etich in his case.