By Isaiah Lucheli
Deputy Chief Justice Nancy Baraza has moved to the Supreme Court seeking to quash the verdict by a tribunal that investigated her conduct and recommended among other things her removal from the judiciary.
Baraza also wants the highest court on the land to declare that the tribunal’s recommendations and findings as contained in their report of August 6, 2012 that was handed over to President Kibaki, could not form the basis of her removal from office.
She prays in her petition that the court declares the findings of the tribunal that her conduct on December 31 last year at Village Market Nairobi amounted to both gross misconduct and misbehavior were not supported by the evidence on record and therefore are unfounded and bad in law.
“The tribunal acted in violation of the requirement of Articles of the constitution touching on rights to fundamental freedom, human dignity, fair hearing, removal from office and also violated section 107 of The Evidence Act,” the petition reads in part.
The DCJ who filed the appeal through lawyer Judy A Guserwa and Company Advocates submits that the tribunal acted in excess of its mandate and therefore its report and findings cannot be left to stand.
In the petition, she argues that the tribunal had failed to appreciate and hold that the alleged search at the Village Market Nairobi to which she had been subjected to was illegal and a violation of her constitutional right to privacy as enshrined in Articles 2, 3, 19, 28, 31 and 50 of the Constitution of Kenya.
“The Tribunal readily accepted the testimony of Rebecca Kerubo as the truth despite its contradictions, inconsistencies and discrepancies and roundly rejected the testimony of Baraza without subjecting the entire evidence to thorough scrutiny, analysis and evaluation,” read the petition in part.
She added that the committee first believed the evidence of Kerubo and Anthony Makhanu Muchuma and then proceeded to discredit her evidence thus showing bias by shifting the burden of proof to the Petitioner Judge.
The DCJ added that panel completely ignored and failed to take into account the evidence with regard to the findings of the Judicial Service Commission (JSC) to the effect that she did not pinch the nose of Kerubo as the evidence adduced was in favour of her.
She added that the hearing erroneously believed the evidence of Kerubo and Makhanu on the second charge of gun-threat which evidence was not supported by the CCTV evidence.
She explained that the eye witness like the Watchman guarding the nearby Diamond Trust Bank offices situated next to Belladona Pharmacy and the Taxi drivers who were in the parking area and who were known to the Village Market Nairobi management were not availed to the Tribunal to testify.