The Supreme Court has quashed the removal of High Court judge Martin Muya saying the reasons given for his sacking did not amount to gross misconduct.
A bench of five judges of the apex court led by Mohammed Ibrahim ruled that delaying to give reasons in a ruling for a period of five months did not amount to gross misconduct.
A tribunal chaired by former Court of Appeal judge Alnashir Visram found him guilty of gross misconduct for delaying reasons of a ruling he delivered in a matter pitting NCBA Bank and Kipsigis Stores.
“We declare that the petitioner’s conduct did not amount to gross misconduct in terms of Article 168(1)(e) of the Constitution. The tribunal’s recommendation to the President to remove the petitioner from office under Article 168(7)(b) of the Constitution is likewise set aside,” the judge said.
The Judicial Service Commission had recommended his removal saying the delay made the lender lose Sh76 million, after 14 lorries that NCBA was pursuing, were auctioned by another party, over a different debt.
The lender was entangled in a legal fight with Kipsigis Stores over a loan, which was secured using the lorries.
According to the tribunal, the judge’s action of not giving reasons after ordering a status quo made the bank lose the money. The judge said he did not sanction the sale of the lorries but asked the parties to preserve the vehicles, pending the determination of the case.
But the judge through lawyer Philip Nyachoti argued that there was no evidence that the bank suffered any loss. The court agreed stating that the lender encountered inconvenience but no loss or prejudice was shown.
“On the first ground, we reverse the tribunal’s decision that the delay in giving reasons was inordinate and amounted to gross misconduct,” the judges added.
The top court said although the tribunal has wide powers in the process of investigating any of the grounds for removal of a judge, it acted in excess of its mandate, in specific situations when it considered issues pending determination in the High Court or introducing matters that were not before the petitioner when he made the decision in question.
“We have demonstrated that there was no proven loss or prejudice suffered by the Bank as a direct consequence of the Petitioner’s decision,” the court said.