A case filed by the Kenya Judges and Magistrates Association (KMJA) against the Chief Justice in regards to his power to suspend and interdict its members has been referred to the employment and labour relations court.
In his ruling, Justice James Makau said that the petitioner (KMJA) is related to the respondents (CJ David Maraga) and the Attorney General in that it is an issue of employer and employee.
“I find that the matter should be heard before the employment and labour relations court,” riled Justice Makau.
The judge further ruled that the petition is urgent and should be heard on a priority basis. He directed the file to be placed before the presiding judge ELRC for directions on Wednesday.
KMJA seeking a declaration that the delegation of powers to Chief Justice David Maraga to interdict, suspend and reprimand is inconsistent with Article 172 of the Constitution as read together with Section 14, 20 and 32 of the Judicial Service Act, 2011.
Through lawyer Dunstan Omari, the body is also seeking a declaration that the Judicial Service Commission (JSC) through its secretariat or a subcommittee is the only body obligated by law to appoint, receive complaints against, investigate and remove from office or otherwise disciple registrars, magistrates, other judicial officers and other staff of the judiciary.
According to the KMJA, the suspension of its members as per paragraph 16 of the Third Schedule on a nil salary is inhumane, indignifying and is hostile and in contravention to Article 25(c), 28 and 50 of the Constitution thus null and void.
However, the respondents argue that a suspended judicial servant receives half of his salary during the time he/she is interdicted and is paid all the withheld monies upon clearance by the JSC.
Omari argued that it is not clear what a judicial officer goes home with after suspension or interdiction since the JSC is the one that determines what he/she gets according to the Judicial Service Act.