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Court allows tribunal to probe Judge Martin Muya over gross misconduct

By Faith Karanja | September 30th 2019

Justice Martin Muya gives out his ruling at the Mombasa High Court in Mombasa County on Thursday, September 18, 2014. He is under investigation over alleged gross misconduct after the court okayed the JSC recommendations. [File, Standard]

The Employment and Labour Relations Court has allowed a tribunal to investigate the conduct of Judge Martin Muya that was recommended by the Judicial Service Commission (JSC).
Lady Justice Maureen Onyango has ruled that JSC was conducting its function in accordance with the Constitution when it requested President Uhuru Kenyatta to constitute a tribunal.
“It is the tribunal that will decide if the grounds raised the amount to the removal of a judge or not,” added Onyango.
She has added that Muya’s right to a fair hearing was not violated because he was given time to respond.
According to Judge Onyango, Muya cannot now change his mind and say that the hearing was not fair.
“I agree with JSC that it has no further role in the matter and the tribunal should now be in charge of the matter,” added Onyango.
She ruled that tribunal ought to be allowed to exercise its mandate and proceed to investigate Judge Muya.
Judge Muya through his lawyer Philip Nyachoti had sued the JSC  for asking President Uhuru Kenyatta to set up a tribunal to investigate him over alleged gross misconduct.
Muya who sits at the High Court in Bomet is among three judicial officers recommended for probing over gross misconduct, incompetence, and abuse of office. Other judges are DK Njagi Marete and Lucy Waithaka.
On July 4, 2019, Muya had unsuccessfully objected to an application by JSC seeking to refer his matter to Employment and Labor Relations Court.
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 and 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.
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, 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 Nyachoti, the embattled judge faulted the JSC recommendation saying it was “fundamentally flawed, fatally and incurably defective and therefore wanting in validity and reliability.”

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