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Is it end of the road for Deputy Chief Justice?

By | Jan 14th 2012 | 4 min read
By | January 14th 2012

By Lucianne Limo

The fate of the Deputy Chief Justice Nancy Baraza has been sealed, as the Judicial Service Commission has recommended her suspension.

The Chief Justice Willy Mutunga Friday said the sub-committee he appointed to investigate her conduct has resolved to send a petition pursuant to Article 168 (4) to President Kibaki with a view of suspending her as Deputy CJ and as a judge of the Supreme Court.

The CJ said the President upon receiving the petition would within 14 days suspend the Deputy CJ.

Mutunga said the JSC arrived at their decision after holding evidentiary hearings and interviewing several material witnesses.

Mutunga said the report by the sub-committee is based on the inquiry on the incident pursuant to JSC’s own motion to investigate an issue that may have arisen as it relates to the conduct of the Deputy CJ.

Chief Justice and Judicial Service Commission Chairman Willy Mutunga (right) address the media on JSC’s verdict on Deputy Chief Justice Nancy Baraza’s case, at the Supreme Court, Nairobi Friday. [PICTURE: BONIFACE OKENDO/ STANDARD]

"The Deputy CJ was afforded an opportunity to testify before the sub-committee. We must reiterate that this was not a criminal trial," he said. "The standard of proof as per Article 168 and the judicial code of ethics is not the same as for criminal proceedings. It is not beyond reasonable doubt," Mutunga added.

After lengthy deliberations, evaluations of witnesses’ testimonies and other material evidence, Mutunga said the JSC decided to suspend Baraza.

The JSC also dismissed a petition filed by one David Gichira calling for the removal of Baraza, saying it lacked material substance.

In carrying its investigations, Mutunga said the sub-committee relied on a holistic appraisal, audit and investigation of all facets of the Village Market incident relevant to the Baraza case.

"The sub-committee took cognizance to the fact that its mandate relates to an investigation as to whether the DCJ has breached the judicial code of conduct or acted in gross manner or showed, exhibited a conduct that can be seen as gross misconduct or misbehavior under Article 168," said the CJ.

He said the committee headed by the Reverend Samuel Kobia, had to investigate any exchanges, altercation, argument between the DCJ and the village Market guard Rebecca Kerubo on New Year’s Eve.

According to the Constitution, the President shall, within 14 days after receiving the petition, suspend Barasa from office. Acting on the JSC recommendation the President will name a seven-member tribunal.

It shall comprise a chairperson and three other members from among serving or retired judges of a superior court or persons who qualify as such.


Others are an advocate of 15 years standing and two other persons with experience in public affairs. The tribunal shall inquire into the matter expeditiously and report on the facts and make binding recommendations to the President.

The Constitution stipulates a judge aggrieved by a decision of the tribunal may appeal against the decision to the Supreme Court, within 10 days after the tribunal makes its recommendations.

The President shall act in accordance with the tribunal’s recommendations upon expiry of the time allowed for an appeal.

The saga that may cost Baraza her job arose on New Year’s Eve when the DCJ went to buy drugs at a pharmacy at the Village Market shopping mall in Nairobi.

A guard, Rebecca Kerubo, who was manning the security desk at the mall’s entrance, claims that she tried to stop Barasa so that she could frisk her but she walked away.

Ms Kerubo followed her into the pharmacy, demanding that she opens her handbag for the check, which the DCJ did not take kindly.

The guard further claims that things got out of hand when Baraza came out of the pharmacy. She claims Barasa pinched her nose, telling her she should learn to know people.

Ms Kerubo reported to the police that Baraza then instructed her bodyguard to shoot her, but when he declined. The DCJ, she said, then went to her car and returned with a gun, threatening to kill her. She is said to have been infuriated at the humiliation. Amid intense media coverage of the incident, Chief Justice Mutunga announced last Friday he would convene an emergency session of the JSC.

The commission met on Monday and set up an eight-member committee chaired by Rev Kobia to investigate her conduct.

Barasa first appeared before the JSC committee for interrogation on Tuesday shortly after her accuser was interrogated. The DCJ was recalled to the committee on Thursday.

Baraza has denied wielding a gun or threatening the guard, saying she does not carry a firearm.

In a statement after news of the saga broke out, Baraza described the incident as unfortunate and asked Kenyans to allow police to investigate. She said that she had been apprehensive about her security in the recent past, after a number of incidents in and out of her office.

Kerubo was accompanied by her lawyer Irungu Kangata, her husband Bernard Morara, and a colleague, to the hearings at the Supreme Court.

"My client has not tried to extort money from anyone. All she wants is justice," Kangata said, rejecting claims that her client had asked for money from Barasa to settle the matter out of court.

"If the roles were reversed and she was the one who assaulted or threatened the deputy CJ, by now she would be at Kamiti Maximum Security Prison. The same way they treat a common man is the way they should treat the DCJ," the lawyer said.

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