Pamela Chepkemei and Daniel Nyassy

26 January 2012

Suspended Deputy Chief Justice Nancy Baraza on Thursday lost the first round of a legal fight to stop a tribunal appointed by President Kibaki from inquiring into her conduct.

The case will be heard on Monday in the presence of all parties.

Another case was lodged at the High Court in Malindi by a prisoner challenging the decision by the Judicial Service Commission (JSC) to petition the President to suspend Ms Baraza.

The case was filed by Emmanuel Boki Kibagendi, now serving term at Malindi Prison.

In Nairobi, Justice Mohammed Warsame declined to issue temporary orders stopping the tribunal from investigating accusation against the DCJ of assaulting a security guard at Village Market shopping mall on New Year's eve.

Justice Warsame said he could not issue the orders at first instance because the matter was a weighty one, where both parties in the case needed to be heard.

Ms Baraza has named JSC and the Attorney General as respondents.

Lawyer John Khaminwa, acting for Ms Baraza, had pleaded with the judge to issue the orders in favour of Ms Baraza because JSC's action was in breach of the Constitution.

The lawyer faulted a decision by the Commission to petition the President to constitute a tribunal over a simple dispute between Ms Baraza and security guard Rebecca Kerubo.

"All that we are told is of a misunderstanding between two women at a market place and you ask the President to form a tribunal?" asked Dr Khaminwa, who accused JSC of breaching the law while handling Ms Baraza's case.

He said JSC should have acted only after receiving a petition from outsiders, which was not the case.

Dr Khaminwa faulted the decision by the JSC to rely on statements given by police officers handling the case.

Relying on police statements was a breach of the principle of separation of powers because the force was part of the Executive, said Dr Khaminwa, adding: "The Chief Justice, the judges, the Attorney General and lawyers who sit in that Commission have breached the law and the Constitution."

He accused JSC of acting in a highly biased and prejudicial manner against Ms Baraza, who is also the vice-president of the Supreme Court. The commission had no power to set up a sub-committee to investigate Ms Baraza and forward its findings to JSC, he said.

And Dr Khaminwa accused the media of persecuting the deputy CJ.

"The media quickly showed her as an evil, and rotten woman who should not be the Deputy Chief Justice of Kenya. They prosecuted, convicted and passed a sentence against her that she should just accept a fat cheque and go home," the lawyer said.