BY SAM ALFAN.
High Court Judge Njagi Marete has petitioned the Employment and Labour Relations Court to block the Judicial Service Commission (JSC) from recommending a probe into his alleged misconduct.
Aggrieved by JSC decision, Judge is seeking an injunction to stop the decision made on May 9 by the JSC, under the chairmanship of Chief Justice David Maraga, recommending to President Uhuru Kenyatta to appoint a tribunal to investigate him.
“Justice Marete has challenged the power of the JSC to exercise supervisory or appellate over the decisional independence of judges under the constitution”, said Lawyer Imanyara.
The application made by the Judge, through lawyer Gitobu Imanyara, was certified urgent and will be heard on June 3. The court documents will be served on the JSC before the hearing date.
“He feels it is the independence of the judge from direction or control external actors that is under threat and he will fight for this independence all the way to the Supreme Court if necessary”, added Lawyer Imanyara.
When he made the formal announcement, Justice Maraga named Justice Marete alongside Justices Martin Muya and Lucy Waithaka whom the JSC decided to recommend the disciplinary proceedings.
The complaint against Justice Marete, who served in the Employment and Labour Relations Court in Kericho, was filed by the Kenya Tea Growers Association (KTGA), Unilever and five other firms in an industrial dispute in 2017. “In those cases, the Judge, while well aware of the existence of an order in another file on the same subject matter, went ahead and issued orders which had the effect of setting aside the orders of a fellow Judge of co-ordinate jurisdiction,” the Chief Justice had explained.
“Despite the petitioner (judge) request for both verbally and in writing to supply him with the decision or determination , JSC has refused , failed or neglected to provide him with the said decision”, said the judge in the petition.
Judge Marete said he believes that at the time the public announcement was made on May 9,2019, no decision had been made owing to the absence of the commissioner who was out of the country.
“After hearing the matter, the JSC found that the petition had disclosed gross misconduct, bias, impartiality and breach of the Constitution and Judicial Code of Conduct against the Judge,” Justice Maraga said.
In his pleadings, Justice Marete has argued that the JSC made the public announcement before serving him with its determination. He cried foul that the JSC had refused, failed and neglected to provide him with the formal decision despite his verbal and written requests.
The Judge, who was appointed on July 13, 2012, protested that the commission’s purported decision was an attempt to appease public hostility. He urged the court to intervene and protect the dignity and independence of the judiciary.
A press statement could not form the basis of a recommendation to the President to appoint a tribunal, he argued, saying the JSC decision was an abuse of judicial authority and blatant breach of Article 160 (1) of the Constitution.
Employment and Labour Relations Lady Justice Maureen Onyango certified the application urgent and directed the embattled judge to serve JSC and appear in court on June 3 for further directions.
