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CJ Maraga tells off Speaker Muturi over BBI Proposals

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Chief Justice David Maraga has hit out at National Assembly Speaker Justin Muturi and the Law Society of Kenya (LSK) over proposals they made to the Building Bridges Initiative (BBI) task force on the structure and operations of the Judiciary and the Judicial Service Commission (JSC).

Justice Maraga said the two, together with Mr Ngatia Wambugu of Africa Institute for Peace and Human Rights, made proposals that are dangerous, retrogressive, likely to mark the end of judicial independence in Kenya and undermine the rule of law.

He said that some of the proposals made to the BBI task force are aimed at giving the president an upper hand in determining who becomes a judge and water down JSC’s mandate of determining those who are suitable for appointment as judges.

The CJ insisted the suggestions tabled before the Senator Yusuf Haji-led BBI team are part of a struggle to control the third arm of government.

In an 11-page statement, the CJ rejected a proposal that the removal of a Chief Justice and Deputy Chief Justice from office should be done by parliamentary acclamation and not by a tribunal.

REMOVAL OF JUDGES

Speaker Muturi had proposed that the National Assembly should be involved in the sacking of a Supreme Court judge.

Mr Muturi had also proposed that whenever the JSC is satisfied that there exists sufficient grounds for the removal of a Supreme Court judge, the commission should submit the decision to the National Assembly.

The MPs, according to the Speaker, would within 30 days examine and determine whether the allegations against the judge have been substantiated.

Where the National Assembly affirms, by a decision supported by majority of MPs that the allegations have been substantiated, then the judge ceases to hold office.

On the appointment of judges, Mr Muturi proposed that when a vacancy occurs at the High Court and Court of Appeal, the JSC should forward to the president a basket of names three times the number of vacancies, for the president to choose.

READ ALSO:   Uhuru warns Kang'ata over statement on BBI  

But Justice Maraga said sending three times the number of names to fill a position means the JSC would forward to the president names of people who are not qualified for the job.

“The JSC would even in cases where it is not satisfied that certain applicants have not met the legal and constitutional threshold still be compelled to submit their names to the president, who might end up appointing those who did not satisfy the JSC,” said Mr Maraga.

BIAS

The CJ also said that according to the Speaker’s suggestions, the president would become the nominating and appointive authority, contrary to the doctrine of separation of powers.

“Opening a window for the president, even in a small way, to decide which nominees to appoint and which ones to reject would be a relapse to the old system, which was overwhelmingly discarded by Kenyans in a plebiscite. It would open the window for the reintroduction of manipulation and horse-trading in the appointment of judges,” explained Justice Maraga.

But he was quick to add that this is not to say the president has no role on judges’ appointment, pointing out that four JSC members are the president’s appointees.

On its part, the LSK had called for a review of JSC, given the occurrence of petitions against sitting judges who are also members of the commission that is expected to investigate them.

The LSK proposed that a peer-review mechanism should be established in order to protect integrity of the JSC.

The LSK argues that judges and magistrates who sit in JSC are predisposed to defend their own.

A case in point is a pending petition filed by the Director of Public Prosecutions and the Director of Criminal Investigations before the JSC for the removal of Deputy Chief Justice Philomena Mwilu.

There are other multiple petitions against various judges and magistrates, including one on CJ Maraga by activist Okiya Omtatah over alleged misconduct.

READ ALSO:   VIDEO: I can also run for President, Speaker JB Muturi says during interview in his Kimbeere native tongue

FIDELITY TO THE LAW

According to the LSK, judges and magistrates also shield and safeguard appointments and promotions for their exclusive benefit within the Judiciary and to the exclusion of ‘outsiders’.

CJ Maraga responded that the LSK’s contentions are premised on non-factual and biased positions that ignore the importance and relevance of the current constitutional architecture.

“The issues confronting the courts are better understood by men and women who have taken the judicial oath to defend the Constitution and whose everyday role is to do so,” said Justice Maraga.

In fact, the Judiciary is not adequately represented in JSC because the Environment and Lands Court together with the Employment and Labour Relations Court have no representation, Mr Maraga said.

He noted that the representation of the Judiciary in JSC accounts for 45 per cent, compared to the Parliamentary Service Commission (PSC), whose composition is 85 per cent MPs and parliamentary staff.

Mr Maraga further dismissed the idea that judicial officers and judges at the JSC have protected their own.

In its first 10 years of existence, the JSC has recommended the formation of tribunals to remove six judges of superior courts, has dismissed and disciplined the chief registrar of the Judiciary and seven directors.

MANDATE

Mr Maraga added that the commission has processed 496 disciplinary cases, appeals and reviews against judicial officers and staff, including magistrates.

“This record belies the manufactured perception that the JSC serves to protect members of the Judiciary and cushion them from disciplinary actions. Evidence further belies the carefully manufactured perception that JSC cushions existing members of the Judiciary from competition from outsiders on appointments to higher offices, especially those of judgeship,” stated Mr Maraga.

He explained that the JSC has recommended the appointment of 149 judges of the superior courts and only 43 of them have come from within the Judiciary.

READ ALSO:   Kenyan Diaspora baffled by BBI taskforce for ignored recommendations

Mr Maraga hit out against Speaker Muturi further for suggesting that courts should be stopped from handling cases on acts of commission or omission by the president and that the same be determined by the National Assembly.

Speaker Muturi had also suggested that questions of the constitutionality of an Act of Parliament should only be decided by the Supreme Court.

He had also said courts should not exercise supervisory jurisdiction over decisions of Parliament or county assemblies to remove from office by impeachment any public officer on whom the Constitution or the law provides for such removal.

The proposal was in light of multiple injunction orders issued in favour of governors, county speakers and county executives once impeached by MCAs.

KEY PROCEDURE

But the Chief Justice opposed the suggestion, describing it as dangerous.

“Article 165(6) of the Constitution only vests the High Court limited authority to supervise the exercise of Parliament’s oversight function (not legislative authority) to ensure that Parliament observes due process in the disciplining or removal of public officers,” said Justice Maraga.

On the suggestion that challenges on the constitutionality of the Acts of Parliament should be left to the Supreme Court, the CJ said it is impracticable and unwise.

This is because there is need for the issues to be properly ventilated and developed from the High Court through the Court of Appeal before the Supreme Court has a say on the issues.

“Kenyans need to seriously reflect on the pressure and preponderance of the other arms of government over the Judiciary. It is clear to any keen observer that the subscript of these proposals is to control the Judiciary,” said the CJ.

He added: “Kenyans should further ask: what is the motivation or interest behind the struggle to control the Judiciary?”

-Nation.co.ke


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Courts

Four children fight claims they were disowned by late MP

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Four children of former Keiyo North MP William Murgor yesterday fought allegations that they had been disowned by their father before his death.

While testifying before the High Court in Eldoret, Ambrose Kiplagat Murgor, one of the four children said to have been born out of wedlock, told the court their father never disowned him or any of his three siblings.

While being cross-examined before Justice Hellen Omondi, Mr Kiplagat said he was a biological child of the late MP, adding that the contrary claims were only made to lock him and his siblings out of the MP’s vast estate.

“My late father never disowned me or my siblings,” Kiplagat told the court.

He said he was born in 1970 at Murgor’s Kaptagat farm before they moved in 1976 to Chesigot farm in Elgeyo Marakwet County.

The four – Kiplagat, Oscar Murgor, Sharon Murgor and Faith Murgor – who are children of the former MP’s fourth wife Anna Kimoi, have told the court they were brought up with the other children.

“We were raised together with the other siblings from the different houses. I was in school with my two brothers, Collins and Kenneth, in the same primary school, all along living as brothers,” he added.

READ ALSO:   Kenyan Diaspora baffled by BBI taskforce for ignored recommendations

He told the court that he did not know the reasons as to why he and his brother Oscar did not get a share of their father’s farms like rest of his siblings.

Kiplagat added that his elder sister Enid Cheptanui filed the case against her step-brother Francis Murgor, Chemutai Murgor and Keiyo North MP Dr James Murgor for excluding them in the distribution of the Sh1.4 billion family estate.

While testifying in the succession dispute, James denied knowing Kiplagat and his three siblings Oscar, Sheila and Faith Murgor.

While James claimed to have only been familiar with them for a few years, Kiplagat on the other hand told the court the MP was well known to him and that he had even campaigned for him.

“I campaigned for him in three elections, and he always introduced me as his brother. When my mother was sick, I was in contact with the MP, who even helped in paying the hospital bill,”

by Stanardmedia.co.ke


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Willy Mutunga’s former wife loses bid to revive divorce suit

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Former Chief Justice Willy Mutunga’s ex-wife Beverle Michaele Lax (pictured) has lost a bid to revive a divorce appeal she filed against him in 2015.

The Court of Appeal had initially dismissed Lax’s appeal against a High Court divorce ruling for her lawyer’s failure to pursue it.

She, however, went back, saying her lawyers never informed her that the case was coming up.

But Court of Appeal Judges Asike Makhandia, Jamilla Mohammed and Sankale ole Kantai found that her conduct, while the appeal was pending, did not persuade the court to intervene.

According to the judges, Lax filed a separate case to dissolve the same marriage at a San Mateo County Court in California, US, and never informed the Kenyan court about it.

The court observed that the High Court had finally dissolved the marriage, hence her appeal had been overtaken by events.

“We cannot fathom the reason(s) for this action. Be that as it may, it does again point to the applicant as a person without candour. What the applicant is seeking from this court is really the exercise of discretion,” the judges ruled.

The court found that if Lax was discussing with her lawyers about their pay, they must have informed her about the appeal.

READ ALSO:   VIDEO: Kenyans in Diaspora reject BBI report, referendum

Lax told the court that she came to learn about the dismissal of her case in November last year when she temporarily visited Kenya. She narrated that she only managed to peruse the file on January 24, 2020 and could not have attended court as she was unwell.

She said her then lawyers failed to inform her that if she did not pay their legal fees, they would not attend the court sessions.

“There is no doubt that the applicant was in constant communication with her counsel who were irksome in demanding their legal fees and we therefore find it difficult to believe that she was not informed of the hearing date,”  the judges ruled.

Mutunga opposed her application and told the court he filed a divorce case against Lax in 2009. According to him, the court gave its judgement on July 26, 2012.

Aggrieved with the High Court’s decision, Mutunga said his ex-wife filed an appeal on September 18, 2015, but the case did not proceed out of her delaying tactics.

He explained that when the case came up for hearing on November 18, 2015, Lax sought for Deputy Chief Justice Philomena Mwilu, who was then a Court of Appeal judge, to withdraw from the bench that was hearing the case.

READ ALSO:   Uhuru warns Kang'ata over statement on BBI  

By Standardmedia.co.ke


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Mombasa lawyer loses Sh20 million to ‘mganga hatari’

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A Mombasa lawyer charged with stealing Sh20 million from his client told a court the money was swindled by a mganga from Tanzania. Witchdoctor

Musa Ngare Aziz told Senior Principal Magistrate Francis Kyambia that he contracted a Mr Mohammed, a witch doctor, to help him sell red mercury reportedly valued at over Sh100 million. The mercury was purportedly in the possession of a woman identified as Sarah from Samburu.

Mohammed took Aziz through ritual including meeting with ‘invisible sheikhs’ in dark caves in Mombasa, besides other rituals in Tanzania to help in selling the mercury to increase his fortunes.

But it was the beginning of his financial drain, physical torture and death threats, said Aziz, who confessed to his parents after recovering from a road accident that, “I had been conned a lot of money mainly belonging to my clients.”

Aziz said a friend introduced him to Sarah as a client in need of legal services to sell mercury. Sarah in turn, introduced him to the mganga ostensibly after failing to find a buyer. Since the deal was purportedly worth Sh105 million, a lawyer was needed. Aziz was taken to a house in Kisauni belonging to a woman identified as Mama Agnes.

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“I went to verify the mercury, Agnes poured it on a razor blade and it turned black and while my friend’s blue pen turned red,” Aziz told the court.

“However, Sarah claimed to have seen a snake in the mercury and was told by elders that only Mohamed could help because there was something bad halting the transaction, which needed cleansing,” Aziz narrated.

He added that he used his own and client’s money for Mohammed’s costly rituals for which he was brought before the court charged with stealing Sh20 million belonging to his client, Majid Rashid Abdalla, on diverse dates between October 6 and 27, 2015.

The police haven’t arrested Mohammed or the ‘invisible sheikhs’ as they apparently are afraid of venturing into the dark caves.

Aziz told the court that the invisible sheikhs asked for a bag, which disappeared but was returned full of cash equivalent to Sh105 million – the value of the mercury. The bag was then closed and keys handed to Aziz to open once the sheikhs secured a buyer for the mercury.

He said Mohamed had asked him and his team to bring with them Sh20,000 as entry fee into the cave and a big bag. He was told to place Sh300,000 in the four corners of the bag totalling Sh1.2 million.

READ ALSO:   Kenyan Diaspora baffled by BBI taskforce for ignored recommendations

He said that voices demanded the bag, which disappeared and when it returned, it was full of cash equivalent to Sh105 million.

The invisible sheikhs then demanded a second bag stashed with 1.5 million on each corner but when Aziz returned to the cave with the bag containing $60,000 (Sh6 million), the sheikhs were not impressed. They reportedly threatened and tortured Aziz, who was warned against going to work and was fined Sh100,000.

Every Thursday, Mohammed demanded Sh80,000 to feed the invisible sheikhs with camel meat. He gave Mohamed the cash directly or took it to the caves himself or through his friend. Aziz also catered for Mohamed’s travels from Tanzania and accommodation in Nyali during the entire duration of the rituals in Mombasa.

Aziz promised to reimburse the money in instalments. Hearing is set for Nov 25.

by Standardmedia.co.ke


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