Four Supreme Court judges have declined to withdraw from a case after dismissing an application by the Judicial Service Commission (JSC).
The judges of the top court clashed with the JSC, the Judiciary's employer, in an employment dispute filed against the commission by former Judiciary Chief Registrar Gladys Shollei.
In a unanimous decision read yesterday, Chief Justice David Maraga, his deputy Philomena Mwilu as well as justices Jackton Ojwang' and Njoki Ndung’u rejected the application.
The commission had said it did not have confidence in the judges hearing the case, citing conflict of interest. It claimed that because justices Maraga and Mwilu were both its members, they would not render a fair verdict.
The JSC also claimed that justices Ojwang' and Njoki have separate cases filed before the High Court against it.
However, Shollei, in her reply, argued that she had no issue with the judges hearing her case.
Justice Isaac Lenaola had earlier withdrawn from the case because he was a member of the commission when it made a decision to sack Shollei, now the Uasin Gishu Woman Representative.
If the four justices had joined Lenaola in sitting out the case, this would only have left justices Smokin Wanjala and Mohamed Ibrahim on the bench, thus handing the JSC a technical victory because the Constitution requires that the Supreme Court has to have five judges to form a quorum.
This would also have meant that a Court of Appeal decision which said Shollei did not prove her case against her former employer would stand.
The judges dismissed the application by JSC noting that the allegations raised against them would mean that the Supreme Courtcannot sit in any matter involving the commission, adding that it would be absurd to have the Court of Appeal as the final arbiter in cases involving the commission.