BY SAM ALFAN.
A high court judge has denied a colleague judge orders stopping JSC election.
The scheduled election of the High Court Representative to the JSC on 11th May will proceed as planned.
An application by Lady Justice Jacqueline Kamau seeking to suspend the election scheduled for Saturday this week was rejected by colleague High Court Judge Chacha Mwita.
Justice Chacha Mwita declined to suspend the election and directed his colleague to serve the Kenya Judges and Magistrates Association the court papers .
The case will be mentioned on the 13th of May for further directions.
The case mentioning date delves a major blow to the judge’s application, which, technically, will be overtaken by time.
In the application, the judge seeks the court to issue conservatory order to stay or suspend the election for the position of High Court Judge representative scheduled for Saturday this week pending hearing and determination of the application challenging the said election.
Justice Kamau who once served as the President of Kenya Magistrates and Judges Association, also urged the court to order the file be placed before Chief Justice Martha Koome to empanel a bench to hear the case saying her petition raises substantial questions of law under Article 165(4)of the Constitution.
The judge further seeks the court to declare the decision by Kenya Judges and Magistrates Association set out in its executive director’s decision dated 6th April 2024 and its National Council’s letter dated 12th April 2024 is unconstitutional, null and void.
“A declaration that the decision of Respondent’s (KMJA) Election rules, to the extent its effect is to permanently excludes women candidates from contesting for the position of representative to High Court in the JSC based on gender, is unconstitutional, null and void,” seeks tge judge.
The judge further the order to quash KMJA’s executive director’s decision dated 6th April 2024 and its National Council’s letter dated 12th April 2024.
The judge also urged the court to restrain KMJA from excluding her or any candidate from vying for either High Court judge representative in the JSC or Magistrate representative in the JSC under Article 171(2)(d) on the ground of gender.
During her tenure at the helm of KMJA, Justice Kamau enacted rules relating to the election of KMJA’s representative to the JSC without discriminating against any candidate on grounds of gender which rules, she says should be followed to the latter.
Judge argues that the gender limitation imposed by the Respondent by its impugned Decision is unreasonable and unjustifiable in an open and democratic society based on the principles of human dignity, equality and freedom.
“The decision ought to be quashed and appropriate reliefs given so as to protect the Petitioner’s and any other aspiring candidates fundamental rights and freedoms as guaranteed under the Constitution,” says the judge.
