The Judicial Service Commission (JSC) has escalated a long-standing dispute with three magistrates to the Supreme Court, seeking to overturn a Court of Appeal ruling that allowed their challenge against the Judges and Magistrates Vetting Board's 2016 decision to deem them unfit for office.
Supreme Court Jurisdiction Dispute ¶
The core of the legal battle revolves around Section 23(2) of the Sixth Schedule to the Kenyan Constitution, which restricts courts from reviewing the Vetting Board's determinations regarding judicial removals. The JSC argues this provision bars all challenges to the board's decisions, while the magistrates contend it only applies to judges, not magistrates.
The three magistrates—Michael Kizito Oduor, Timothy Okello Odiwour, and Bernard James Ndeda—were found unsuitable in 2016 due to allegations of misconduct, including poor judicial skills, partisanship, and misuse of position for personal gain. They challenged the process, claiming it violated their constitutional right to a fair trial and the presumption of innocence.
Legal Arguments and Dissent ¶
The High Court in 2018 ruled that Section 23(2) excluded both judges and magistrates from judicial review, but the Court of Appeal overturned this in October 2021, stating the law explicitly barred only judges from challenging the board. The appellate court criticized the High Court for not evaluating the magistrates' petitions on their merits.
Justices Patrick Kiage and Sankale Ole Kantai supported the Court of Appeal's interpretation, while Justice Hannah Okwengu dissented, backing the High Court's conclusion that the Vetting Board's decisions were immune from judicial review. The Supreme Court has now accepted the JSC's appeal, with Deputy Chief Justice Philomena Mwilu noting the jurisdictional question is
