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Justice Martin Muya objects JSC’s move to refer his case to Labour court

By Faith Karanja | July 4th 2019

Justice Martin Muya gives out his ruling at the Mombasa High Court in Mombasa County on Thursday September 18, 2014. Justice Muya said that his petition raises five heavy constitutional issues that cannot be determined by an employment court. [File, Standard]

Justice Martin Muya has objected to an application by Judicial Service Commission(JSC) seeking to refer his case to the Employment and Labour Relations Court.

In a hearing today, Justice Muya who is challenging JSC's decision to remove him from the office said the Constitutional court is best suited to hear and determine the matter.

Justice Muya through his lawyer Philip Nyachoti termed the application by JSC as hopeless, incompetent, and does not meet the threshold of a preliminary objection.

He said that Employment and Labour Relations Court has the mandate of handling matters arising from the disputes pitting employee versus employer, a category which he said his matter does not fit in.

“This matter has nothing to do with employment because the role of JSC is a pure imperative of the constitution,” said Nyachoti.

He wanted an objection by the JSC to be struck out and the matter taken to the constitutional division.

Judge Muya said that his petition raises five heavy constitutional issues that cannot be determined by an employment court.

He said that he was not accorded a fair hearing ad a right to fair administrative action before he was removed from office as stipulated in the constitution of Kenya.

“The report that JSC relied on to remove me from office is full of inconsistencies and could not warrant Muya’s removal from office,” said Nyachoti.

JSC wanted a case filed by Justice Muya referred to the Employment and Labour Relations Court arguing that the constitutional division has no jurisdiction to hear it.

Nyachoti claimed that referring the case would result into bringing the President as a party to the case and, with him not being the employer of the judge, cannot be sued in an Employment and Labor Relations Court through the Attorney General.

“On the issue of jurisdiction of the High Court to hear and determine the petition hearing, we submit that the procedure under Act 168(1) for removal is not in respect of an employer and employee relationship, more so since the committee’s report and recommendations do not substantively interfere with employment or otherwise of the petitioner,” read court papers.

The judge asked the court to dismiss the preliminary objection on jurisdiction filed by the commission.

Through his lawyer, the judge faulted the JSC recommendation saying it was “fundamentally flawed, fatally and incurably defective and therefore wanting in validity and reliability.”

Muya further sought an order to declare the tribunal formed by President Uhuru Kenyatta invalid.

Muya said that Employment and Labour Relations Court Act 20 of 2011 is bestowed with exclusive with original and appellate jurisdiction to hear and determine all disputes referred to in accordance in the constitution on employment disputes.

Ruling is set for July 18, 2019.

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