Judicial Service Commission (JSC) wants a petition filed by Justice Martin Muya challenging a decision of the commission to have him subjected to the tribunal be heard by the employment court.
JSC told Judge Weldon Korir, that the matter is best suited to be heard and determined by employment and labor relations.
However the move, was opposed by the suspended judge’s lawyer Philip Nyachoti, on grounds that the petition before court raises serious issues of constitution and violation of the Justice Muya’s fundamental rights.
The commission ought to have filed a reply to court, to respond to a petition and not a preliminary objection which can be argued together with the application and enable the court fast track the urgent application.
Justice Weldon Korir of constitutional division, said he has looked at the application and he has established that the aggrieved judge as an arguable case.
He directed parties to file their respective submissions and the matter be heard on July 4.
Justice Muya in his petition, he seeks stay of findings of JSC dated May 8 recommending that a report arising from its proceedings be presented to the President to appoint a tribunal to investigate into his conduct on allegations of gross misconduct.
The tribunal according to the findings of JSC is to look into misbehavior, breach of the constitution, judicial code of conduct and ethnics pursuant to the complaint lodged by the law firm of Onynkwa and company advocates on 17 August 2017 on behalf of NIC bank limited.
Nyachoti told the court that the presentation of the petition and subsequent appointment of the tribunal can take effect any time now hence the urgency of the application for conservatory orders.
He said the report and recommendation were not made available to the judge until it was published in the media followed by several demands and the applicant was unable to file the suit timely.
The judge is aggrieved with the report and recommendation on grounds that the JSC exceeded its jurisdiction by delving to the merits of the ruling the subject of the complaint thereby usurping the appellate power that is contrary to the law and arrived at an illogical, irrational, unreasonable and erroneous conclusion.
Nyachoti argues that the reports fundamentally flawed and incurably defective and wanting in validity as the commissioners made reference to several issues that are separately to the complaint.
“The judge was not given a fair hearing by JSC this will come out clearly during proceeding of the petition,” said Muya.