Judge quashes Parliament's decision indicting six JSC commissioners

The High Court in Nairobi has reversed Parliament's decision to indict six Judicial Service Commission (JSC) members over alleged financial impropriety.

In a decision which now clears the commissioners in an alleged Sh51 million allowances scandal that rocked the Judiciary in 2013, the court ruled that Parliament acted illegally and out of ulterior motives.

Justice Wilfrida Okwany, in her decision against the Ethics and Anti-Corruption Commission (EACC), ruled that JSC was condemned unheard, although the commission snubbed an invite by House’s Pubic Accounts Committee (PAC).

At the heart of the case are four former commissioners - Supreme Court judge Smokin Wanjala, lawyer Ahmednassir Abdullahi, Christine Mango and Rev Samuel Kobia.

Current commissioners are Court of Appeal judge Mohamed Warsame and Makadara Chief Magistrate Emily Ominde.

The judge found that commissioners cannot be personally held liable for actions or decisions made while conducting their duties. This means that they cannot be held accountable for funds drawn, even if illegally.

“Commission did not require the help of the Parliament to look into its own financial problem. The PAC hijacked the process by calling for investigations when a plan to impeach the commissioners hit a dead wall,” Justice Okwany ruled.

President Uhuru Kenyatta in 2013 suspended the six and appointed a tribunal to investigate their conduct.

This was after a majority vote in Parliament on November 7, 2013, requiring him to set up a tribunal.

Retired Justice Aaron Ringera was to chair the investigation assisted by lawyer Jennifer Shamallah, Ambrose Otieno Weda and Mutua Kilaka.

The battle in court is a culmination of a bitter struggle within the Judiciary. The fight led to the controversial suspension of the then Chief Registrar of the Judiciary Gladys Shollei - now Uasin Gishu Woman Rep - in August 2013.

Yesterday, Okwany ruled that PAC had a pre-determined decision against the six. “PAC had already determined the fate of the commissioners. It was a case of putting the cart before the horse and condemning the commissioners unheard,” the judge said

"A declaration is hereby given that the commission is not under control of Parliament in the discharge of its mandate. Commissioners are not personally liable for decision and actions they do in good faith.”