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Judge toasts to victory as top court overturns his dismissal



Justice Martin Muya [Courtesy]

It was victory at last for a High Court judge who was sacked for allegations of misconduct in handling a Sh76 million dispute between a bank and a businessman.

Justice Martin Muya won the big battle after the Supreme Court overturned a tribunal’s recommendation that he be fired from the Judiciary, in a landmark decision where the apex court has for the first time reinstated a sacked judge.

“We find that the tribunal acted in excess of its mandate when it considered issues pending determination in the High Court and by introducing matters that were not before the judge. We hereby set aside their recommendation that the judge be sacked,” ruled the apex court.

With the decision, Justice Muya becomes the first judge found guilty of misconduct by a tribunal to be reinstated to office. The judge has been out in the cold for three years following his suspension from the Bench over misconduct allegations.

Supreme Court Judges Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko found that it was unfair for Justice Muya to be subjected to the humiliation of being sacked when the complaints against him did not warrant his removal.

The judges ruled that judicial independence is so important that removal of a judge can only be justified where the shortcomings complained of are so serious as to destroy confidence in the judge’s ability to properly perform the judicial function.

“Although judges, like all other citizens, are subject to the law, there is need to protect their decisional independence to enable them to apply and interpret the Constitution and legislation without fear of any form of improper interference and influence,” they ruled.

At the centre of the complaint that led to the recommendation to sack Justice Muya was a lost court file, Sh76 million loan disputes between NIC Bank and a businessman and 14 lorries which had been detained as security for the loan.

It started in 2019 when Justice Muya was serving at the Bomet High Court and handled NIC Bank with Alfred Mutai and Kipsigis Stores over the Sh76 million loan.

The bank accused him of bias in his decision stopping them from auctioning the traders’ 14 vehicles to recover the loan and for withholding a ruling for five months, which made it impossible for the bank to appeal and occasioned them losses.

The Judicial Service Commission then recommended to the president the judge’s suspension and appointment of a tribunal to investigate his conduct. The tribunal ruled that Justice Muya was guilty of misconduct and recommended that he be sacked.

Justice Muya then moved to the Supreme Court through lawyer Philip Nyachoti to contest the decision, arguing that the tribunal relied on unsubstantiated evidence to recommend his removal.

Nyachoti argued that the judge was not accorded fair administration process since the file involving the dispute had disappeared and was not available to the tribunal to enable them confirm if he had indeed discriminated against the bank.

On claims that the bank lost Sh76 million due to the judge’s delay in issuing the reasons for his decision, Nyachoti submitted that they had a chance to appeal at the Court of Appeal if they were not satisfied with the ruling.

The Supreme Court agreed that there was no proven loss or prejudice suffered by the bank as a direct consequence of Justice Muya’s decision.

“The truth of the matter was that the bank’s counterclaim… had not been tried and decided in the High Court. By accepting that the bank suffered prejudice, the tribunal went beyond where it ought to have stopped,” ruled the judges.

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