The High Court on Tuesday temporarily stopped the sacking of senior judges found by the vetting board as unsuitable to continue serving in the judiciary.
In a unanimous decision by a five judge bench comprising of Jonathan Havelock, Eric Ogolla, Pauline Nyamweya, Alfred Mabeya and Joseph Mutava, they ruled that the president should not degazette Justices Riaga Omollo, Samuel Bosire, Joseph Nyamu and Emmanuel O’Kubasu as judges of the Court of Appeal until their petitions challenging the findings on their suitability are heard and determined.
“Regarding Judges whose vetting process has already been determined, we recognise that they would suffer irreparable loss and damage should their degazettement as judges be effected before the suits are heard and determined. We therefore order that the affected judges shall not be de-gazetted until the cases are finalized,” ruled the judges.
High Court also noted that it has jurisdiction over the operations of Judges and Magistrates Vetting Board.
In the event that the judges succeed in persuading the court that the board violated their rights, all the blame will shift to President Kibaki for failing to degazette them in time since the board passed their verdict in July.
According to the Constitution, the president is the last stop in the removal of a judge if any tribunal has reached a verdict that the judge is unsuitable to continue serving.
The judges however got the vetting process back on course after lifting the orders that barred the board from continuing with the vetting of judges and magistrates.
The decision to allow the board to continue with their work could however in the end prove to be an opening for more litigation after they declared that Sections of the Vetting Act, which shielded it from court interference were unconstitutional.
They dismissed an application by the Law Society of Kenya questioning the court’s authority to supervise the vetting board, ruling that they are the only institution entrusted by the Constitution to supervise subordinate tribunals and quasi-judicial systems.
“An obstacle created by the Vetting Act cannot stand in the face of issues of rights violations. The High Court is entrusted to interpret the constitution and any person has a right to approach us claiming violation of those rights,” ruled the judges.