Kenya Magistrates and Judges Association secretary general Kibera law court Principal Magistrate Eric Khaemba and her Milimani law court counterpart Resident Magistrate Miriam Mugure outside Supreme Court upheld a decision by the Court of Appeal.
BY SAM ALFAN.
Supreme Court has upheld a decision by the Appellate Court judges that ruled the Judges and Magistrates Vetting Board had no mandate to consider complaints against judges and magistrates arising after the promulgation of the constitution.
The five judge bench lead by chief justice Willy Mutunga, Kalpana Rawal, Philip Tunoi and J.B Ojwang ruled that he board has no jurisdiction to investigate matters relating to judges and magistrate after the promulgation of the constitution of 2010on the basis o that the transition period was limited to old constitution.
Kenya Magistrates and Judges Association had moved to high court seeking whether the vetting board has a jurisdiction to investigate their professional conduct after the old constitution, where they won the case that prompted the board to move to the higher court.
The vetting body said they can only make such a momentous determination on the basis of what the Judge or Magistrate is alleged to have done or omitted to do during his tenure in office before the constitution of 2010., for it is his actions or omission that will determine whether he or she is to be vindicated or condemned.
“We find and hold that the Judges and Magistrates vetting board in execution of its mandate as stipulated in section 23 of the sixth schedule to the constitution of 2010 can only investigate the conduct of Judges and Magistrates who were in office on the effective date on the basis of alleged acts and omissions arising before the effective date, and not after the effective date, “said the bench.
The Judges held that the Board could not have investigated misdeeds that occurred after promulgation of the constitution.
They also questioned on what basis can the vetting board determine that a judge and magistrate who was in office on the effective date is suitable to transit from the old constitutional order to the new one.
The Kenya Magistrates and Judges Association filed the case in High court seeking a declaration that the vetting board cannot lawfully investigate the conduct, acts, omissions and information on part of a judicial officer purportedly arising after the promulgation of the constitution on 27 August 2010.
In her judgment, Justice Mumbi Ngugi on March 26 declared that the Board in the exercise of its functions as stipulated under section 23 of the sixth schedule to the constitution of Kenya 2010 could not determine the suitability of judicial officers based on the acts or conduct that occurred after the promulgation of the constitution.
Aggrieved by that decision, the Judges and Magistrates Vetting Board and the Attorney General filed an appeal in court of appeal.
In a judgment dated July 11 the learned judges of appeal concluded that the High court rightly held that the board had no mandate to consider complaints against judges and magistrates arising after the promulgation of the constitution.
The court of appeal affirmed that it was the JSC that had legal mandate to investigate allegations of misconduct of judicial officers purportedly committed after the 27 August of 2010.
Speaking to journalist after the supreme court decision, the body secretary general Eric Khaemba who is Kibera law court Principal Magistrate said their Christmas has started early after a long time of legal battle with the vetting board.
He further added that, the judges and magistrate will continue serving Kenyan in the fully reformed judiciary.