The Chairperson of Women In Business Committee of the Kenya National Chamber of Commerce and Industry wants JSC to remove of high court judge Msagha Mbogholi for lack of impartiality.
Mary Nyachae filed her petition before the Judicial Service Commission (JSC) accusing the judge of gross misconduct and breach of the Judicial Code of Conduct and Ethics and Oath of Office after issuing orders allowing the elections of the WIB chairperson without a proper appeal.
Through her lawyer Danstan Omari, Nyachae states that Senior Resident Magistrate M. Mirage had issued orders stopping the said elections on 22nd January after Nyachae moved to court to challenge the same.
It is alleged that the Honourable Magistrate proceeded further to slate 4th February, 2020 as the interpartes hearing date of your the petitioner’s application dated the 22nd January, 2020.
However, on 23rd January 2020 soon after the Respondents (KNCCI and its director Richard Ngatia) filed an independent application before the Honourable Magistrate seeking a stay of her orders issued on the 22nd January, 2020.
The lawyer claims that the same was not successful and the respondents contemporaneously filed another application before the High Court in Nairobi at 1447 hrs seeking to set aside the orders of the Magistrate and certify the matter urgent.
Omari asys that the apllication having been paid for at 1447 hours on the 23rd day of January 2020, it is impossible that the said Judge would reasonably have entertained it exparte on the 23rd January 2020.
He adds that it is suspect how the Learned Justice entertained an application filed past noon and proceeded to grant very disturbing orders that are contemptuous to the judicial authority granted to the Honourable Magistrate by the Constitution,2010
According to Omari, Justice Mbogholi went ahead to issue the exparte orders and set aside the orders of the Magistrate which in turn caused the elections to take place on 24th January.
He argues that the judge proceeded to vary, discharge and vacate the orders issued by the Hon.Magistrate while there was no proper appeal before the court essentially undermining the judicial independence and intellect of the Hon.Magistrate’s orders issued on the 22nd January, 2020.
In addition, he adds that the conduct of the judge shows lack of impartiality, competence, diligence and intellectual honesty.
“In acting in the manner that they did, the named judge breached Article 159 of the Constitution, dishonored their respective offices in such a perverse manner that warrants their removal from office,” says Omari.
According to court documents, the actions of the named judge cannot be explained as judicial fallibility/mistakes.
“He has extensive knowledge, experience and wisdom as a judge who took his oath of office in the year 1987 at a young age of 34 years old..,” the lawyer adds.
Omari states that pursuant to Article 74 and the Third Schedule to the Constitution of Kenya, the named Judge took Oaths of Office to diligently serve the people and the Republic of Kenya and to impartially do Justice in accordance with the Constitution as by law established, and to the best of their knowledge and ability, protect, administer and defend this Constitution with a view to upholding the dignity and the respect for the judiciary and the judicial system of Kenya and promoting fairness, independence, competence and integrity within it.
“This misbehavior by the Learned Judge reasonably births suspicion about his conduct and his faithfulness to his oath of office and grant of the order by the Learned Justice through a miscellaneous application other than an appeal or review by the trial court demonstrate gross misconduct and unfathomable misbehavior from the judge,” reads the documents.
The applicant wants the conduct of Justice Mbogholi be investigated to ascertain any benefit he may have received for taking a deliberate legal misdirection.