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JSC looks to quell post Shollei storm

24 December 2013, 12:38 Millicent Kawii

Nairobi - The Chief Justice will decide on a bench of judges to hear and determine a new suit seeking to stop the Judicial Service Commission JSC from recruiting new officers whose predecessors have been sacked on allegations of fraud.

High Court judge Mumbi Ngugi directed Monday that the application filed by Mr Daniel Kipkosgey be looked at by CJ Willy Mutunga with the JSC opposing the suit on grounds that it is similar to an earlier case filed by former Chief Registrar Gladys Boss Shollei. 

Lady Justice Ngugi acknowledged the similarities and declined to grant the request and instead forwarded the matter to the Chief Justice.

“The case raises the same issues and the order sought will be a roundabout way of granting an earlier ruling and dismissal by another High court judge, I place the matter before the Chief Justice to determine the bench to hear the case like before,” Justice Ngugi said.

JSC maintained the case should be dismissed saying it is a way of indirectly reviving Ms Shollei case through the back door.

According to JSC’s lawyer Paul Muite, court has no time to sit again on matters which have already been finalized.

“Court lacks the jurisdiction to hear and determine this matter and this is a way of obtaining orders through the back door for the application by the former Chief Registrar seeking similar orders having been dismissed on November 22,” said JSC lawyer Paul Muite.

However Mr Kipkosgey’s lawyer told the court that the petitioner is an independent person who has never had a discussion with Ms Gladys Boss Shollei and the two cases address completely different issues.

Mr Mutua Kimili representing the petitioner said the case Mr Muite was referring to was between an employee and employer relationship while the new suit seeks to determine whether JSC commissioners are bound by Chapter 6 of the constitution to go ahead with the replacements.

Mr Kimili explained that the new suit is wider than the former Chief Registrar’s office as it seeks to determine whether JSC has powers to make new recruitment when integrity allegations involving judges and members of the JSC have not been fully investigated, cleared and audited.

“I desire to procure from JSC concrete financial audit reports by professionally competent institutions’ tasked with ascertaining such financial losses as the office of the Auditor general has the mandate to account of any entity funded from public funds, report misappropriation and confirm whether or not money has been lawfully and effectively used before being submitted to parliament for debate,” Mr Kimili said.

Mr Kipkosgey is seeking a declaration that pending the resolution of the disputes between JSC and the former Chief Justice, judges as well as other members of the JSC facing integrity allegations currently, JSC should be stopped to carry on with the mandate of making recommendations on recruitment of judges, judiciary’s Chief registrar and other judicial staff as well as their removal from office.

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