By Wahome Thuku

A crisis has hit the Industrial Court after four judges refused to vacate office for new appointees to take over

Consequently the Law Society of Kenya (LSK) has petitioned the Attorney General to take up action against the four judges who
have refused to vacate offices.

The judges are Charles Pius Chemututt, Paul Kipsang Kosgei, Steward Mwachiru Madzayo and Edwin Kiiru Mukunya
The four have served as Industrial Court judges for many years and are the faces behind many decisions on labour disputes. But they had been appointed under the Labour Institutions Act.

The issue of their legality in office has been contentious since the new Constitution was enacted. The Constitution provides for enactment of a law to set up courts to deal with labour and employment matters.

Several people including Nairobi lawyer Dr Kiama Wangai and the United States International University (USIU) filed suits early this year challenging the legality of the continued stay in office.

Kiama and the university argued that the judges had no constitutional standing since they had not been sworn in after the promulgation of the constitution in August 2010.

Parliament enacted the Industrial Court Act but provided for a transition of the old judges to the new courts under the law.

Fifteen new judges were sworn in by President Kibaki on July 13 after vigorous interviews by the Judicial Service Commission but their efforts to take over the offices at the Industrial Court have been unsuccessful.

Following the appointment of new judges, there has been wrangling over whether the previous groups has been technically removed by the Judicial Service Commission.

“Some have refused to hand over their chambers,” said the LSK chairman
Eric Mutua.

They say under the Industrial Court Act, they are supposed to move to the new court without being vetted or interviewed by the JSC.

Mutua says Parliament provided for the unconstitutional transitional clause despite advice by the LSK against the move.

“The Attorney General has given an opinion and agreed that indeed section 32(2) of the Act was unconstitutional since Parliament has no mandate to determine who is to be appointed judge,” Mutua said.

But the LSK say the old lot had never been judges in the first place, given the manner in which they were appointed.

“They are aware that even with the title of a judge they have never been sworn to office,” Mutua said in a statement. He said refusal to hand over chambers amounted to obstructing the administration of justice.

Several weeks ago they went on go slow over their employment status.

The judges now say they have been illegally kicked out of office and have refused to hand over the files they were working on before the new lot was appointed.