A complaint seeking the removal of four Court of Appeal judges has been filed before their employer, the Judicial Service Commission (JSC) after setting aside a High Court ruling that had declared appointment of polls presiding officers as unlawful.
In the petition, lawyer Apollo Mboya has faulted the fact that Justice Kihara Kariuki appointed judges Erastus Githinji, Martha Koome and Fatuma Sichale to sit and issue directions on a day which had been declared as a public holiday just and hours before the repeat presidential polls were held.
Mr Mboya has specifically targeted Court of Appeal president Kariuki for setting up the bench comprising of the other three judges without seeking authorisation from Chief Justice David Maraga.
Mr Mboya pointed out that the three acted in insubordination and that they are stationed outside Nairobi.
“The JSC be pleased to determine the actions of the four as amounting to insubordination, gross misconduct and/or misbehaviour incompatible with the status of judge of Court of Appeal for breach of the Constitution, oath of office and statutory provisions,” said Mr Mboya.
The dispute arises from the fact that October 25 was gazetted as a public holiday so as to allow the public to travel as well as make preparations to facilitate their participation in the repeat president polls, which were held the next day.
Within the Judiciary, the Chief Justice specified the courts which would sit on that day while the rest were to observe the gazette notice.
Even though the Court of Appeal was not authorised to sit, the three- judge bench went ahead to preside over an appeal by the Independent Electoral and Boundaries Commission (IEBC) following a decision by High Court judge George Odunga to declare the appointment of the election officials unlawful.
Justice Odunga had ruled that the process of appointing them and their deputies was done contrary to the law.
The judge, however, declined to stop the repeat polls saying it would be a recipe of chaos and would not be in public interest.
Justices Githinji, Koome and Sichale who are based in Kisumu, Malindi and Nyeri respectively issued the key decision on a temporary basis.