By WAHOME THUKU
Suspended Deputy Chief Justice Nancy Baraza is set to ask that her boss and another Supreme Court judge be disqualified from hearing her appeal citing alleged conflict of interest on their side.
“That will be the very first move,” confirmed a source privy to her preparation.
To justify her appeal, Baraza is likely to cite Chief Justice Willy Mutunga’s and Justice Smokin Wanjala’s roles as members of the Judicial Service Commission (JSC) that recommended setting up the tribunal in January that investigated investigated her conduct and eventually declared her unfit to be a judge of the Supreme Court. A disqualification of Mutunga and Wanjala would spark an unprecedented legal battle as the court has only five judges, the minimum number allowed by the Constitution to sit and hear cases. The number fell from the initial seven after Justice Mohamed Ibrahim was forced to step down by the Vetting of Judges and Magistrates Board, while Baraza remains suspended.
Having filed a notice to appeal the decision by a judicial tribunal recommending her removal from office, Baraza is no longer basking in the latitude that the law creates for her before her appeal can be heard.
According to the legal timelines provided under the Supreme Court Act, Baraza’s case will not be set for hearing until well after mid next month.
She is accused of assaulting security guard Rebecca Kerubo at the Village Market, Nairobi on December 31, last year, brandishing a pistol and threatening to shoot her, and behaving in a manner likely to cause a breach of the peace.
Under the Constitution, Justice Baraza had 10 days in which to file a notice to appeal the tribunal’s ruling. She beat the deadline when her lawyer Kioko Kilukumi filed the notice on August 5.
Thereafter, she had 30 days within which to file the appeal itself as provided by Rule 32(1) of the Supreme Court rules. The deadline for that is September 10, giving her ample time to prepare her case.
“Between now and the time the appeal is determined, every law on the land will be on her side,” commented a lawyer who sought anonymity.
“She should have even filed the notice on the 10th day to enjoy every minute that the law gives her,” said the lawyer he asked not to be named.
Under the Supreme Court rules, Baraza is required to file a petition, a record of appeal and security for costs that may arise from the case.