A five-bench judge of the Supreme Court led by Justice Mohammed Ibrahim noted that the tribunal’s recommendation to the president to remove justice Muya from office is unconstitutional, hence setting aside the tribunal’s finding.
“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 apex court ruled.
“…the tribunal’s findings in respect of all other grounds, set above are quashed and set aside,” the court added.
This means that the judge will continue serving as a judge of the High Court.
Justice Muya moved to the Supreme Court and asked the court to reinstate him to his previous position, challenging the decision of a tribunal that found him guilty of misconduct over delay in delivering a ruling in a case pitting NCBA Bank and Kipsigis Stores.
Through lawyer Philip Nyachoti, he argued that he was not accorded a fair trial and that the tribunal relied on unsubstantiated evidence when they recommended his removal from the Judiciary.
The allegations against the Judge were that he delayed the delivery of reasons for ordering that the status quo be maintained and therefore he committed an act of gross misconduct, warranting the invocation of Article 168(1) (e).
“It is not every delay that would attract punishment. Only inordinate and inexcusable delays are discouraged,’’ the court noted.
The judge while defending himself said that he recorded the reasons why he did not give written reasons in the Ruling of the said case within the time stipulated.
“According to the Petitioner, he had enumerated several reasons to justify the failure to render reasons for the ruling within thirty days as required by the Rules. He reiterated those reasons before the Tribunal and asked it to consider them,” reads court papers.