[2012] KEHC 5817 (KLR)
The court held that since Justice Nambuye's review proceedings before the Vetting Board were still pending and no decision on the review had been published, she was not deemed removed as a judge under the Constitution. Therefore, it was proper and lawful for the court to deliver the judgment written and signed by...
Source-derived case information.
- Citation
- [2012] KEHC 5817 (KLR)
- Parties
- Plaintiff: Peter Denis Mbwali; Plaintiff: John Kipsigei Kitur; Defendant: Kenya Literature Bureau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 230 of 2000
- Procedural Posture
- Civil Case / Ruling on Propriety of Delivering Judgment by Another Judge
- Outcome
- Court satisfied of propriety to deliver judgment written and signed by Justice Nambuye; judgment to be delivered.
- Judges
- DAS Majanja
- Legal Topics
- Judicial Vetting, Judgment Delivery, Judicial Officer Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Denis Mbwali
Plaintiff
John Kipsigei Kitur
Plaintiff
Kenya Literature Bureau
Defendant
Procedural Posture
Civil Case / Ruling on Propriety of Delivering Judgment by Another Judge
Legal Issues
- 1 Whether it is proper for a judge to deliver a judgment written and signed by another judge who is subject to removal proceedings.
- 2 Whether a judge under review by the Vetting Board is still deemed a judge under the Constitution until the review is determined.
- 3 Whether parties should be denied access to judgment due to pending vetting proceedings.
Ratio Decidendi
The court held that since Justice Nambuye's review proceedings before the Vetting Board were still pending and no decision on the review had been published, she was not deemed removed as a judge under the Constitution. Therefore, it was proper and lawful for the court to deliver the judgment written and signed by her. The court further emphasized that access to justice, as protected by Article 48 of the Constitution, requires that parties should not be kept waiting for judgments due to pending vetting proceedings, as long as the judge's removal is not finalized.
Court Disposition
Court satisfied of propriety to deliver judgment written and signed by Justice Nambuye; judgment to be delivered.
Orders
- The court will proceed to deliver the judgment written and signed by Justice Nambuye.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
Civil Case 230 of 2000
PETER DENIS MBWALI
JOHN KIPSIGEI KITUR............................................................2ND PLAINTIFF
AND
KENYA LITERATURE BUREAU.................................................DEFENDANT
RULING
Before delivering this judgment Mr Nzamba Kitonga asked me to satisfy myself of the propriety of delivering the judgment written and signed by Justice Nambuye.
Justice Nambuye is the subject of removal proceedings under the Vetting of Judges and Magistrates Act (Act 2 of 2011). The act was enacted pursuant to section 23(1) of the Sixth Schedule to the Constitution. Undersection 21of the Act,a judge is deemed to be removed once a decision of the Board is rendered but the section is subject to section 22 which gives the judge a right of review.
Until the judge exercises the right of review and a decision is rendered thereon, the judge is not deemed to be removed as the person is still a judge under the Constitution.
I take judicial notice of the fact that Justice Nambuye’s review proceedings are still pending. At any rate there is no decision on the review that has been published. In the circumstances, I am satisfied that I can deliver judgment on the Judge’s behalf.
Article 48of the Constitution protects access to justice and it is proper in the circumstances that parties waiting for judgment should not be kept out of their decisions for an unreasonably long time.
DATEDat NAIROBI this 21st day of September 2012
D.S. MAJANJA
JUDGE