By Wahome Thuku

A decision to nullify the dismissal of two senior judges through the on-going vetting and to vet them afresh has raised legal questions.

Lawyers are questioning the basis upon which the Judges and Magistrates Vetting Board decided to subject Supreme Court judge Mohammed Ibrahim and Roselyn Nambuye of the Court of Appeal to a fresh vetting.

The board chaired by Sharad Rao made the decision to nullify its July decision after the two judges pushed their case for review.

The board, however, sent home another High Court judge Joyce Khaminwa and also rejected an application for review by her colleague Jeanne Gacheche.

It also cleared three Court of Appeal judges Martha Koome, David Maraga, and Kalpana Rawal declaring them fit to continue serving.

“There is no provision in the Constitution for fresh vetting or fresh interview. Neither the Constitution nor the Vetting of Judges and Magistrates Act envisages such a decision,” said lawyer Fred Athuok, one of the lawyers representing Justice Ibrahim before the board.

Athuok argued that once the board had nullified the decision declaring a judge unfit to continue serving, it could not subject him to another round of vetting.

In his application for review, Justice Ibrahim claimed one member of the panel that vetted him had been biased. The member had sent a text message to advocates on July defending the decision to send the judge packing.

Rao said in the peculiar circumstances of the case, the panel and the board had decided the vetting of the judge be nullified in the interest of justice.

“The chairman of the board will constitute a panel to interview the judge afresh,” said Rao.

On Nambuye’s review, the board acknowledged it had erred in determining that she had not submitted an audit of all her outstanding judgements while she had done so during the vetting.

Justice Khaminwa, wife of Senior Counsel Dr John Khaminwa, was removed for delays in the delivery of 63 judgements and rulings some dating back to 2006.

Unwilling

“The judge seemed unwilling to acknowledge that she would have conducted her court in a manner that would have ensured a more efficient case flow management system,” said Rao.

The board upheld the removal of Jeanne Gacheche thereby sealing of her fate as the decision cannot be challenged in any court.

Justice Koome escaped the sacking narrowly with the board members tying four to four on a vote to decide her fate. She had been vetted publicly on May 2 and 16 this year.

Judge Maraga was cleared of accusations of receiving a bribe, an allegation he denied by swearing with a bible.

He had also been accused among others of being lenient in sentencing a police officer to 10 years in a charge of manslaughter.

Rawal faced about six different accusations touching on the manner in which she had ruled on cases. She had been accused of irregularly ordering the exhumation of a body from a plot owned by the deceased’s family member to be buried in another plot.

She was also interrogated on claims that she awarded hefty sums of money in damages to wealthy individuals compared to other litigants.

Rawal was also questioned over her temperament, which the board said left much to be desired, though there was no evidence that it was a grave problem.