Ap­pel­late judges veto CJ’s pow­ers

The Star (Kenya) - - Politics Ministries /judiciary -

A three-judge bench on Fri­day clipped the pow­ers of the Chief Jus­tice (pic­tured) to as­sign mag­is­trates court power to han­dle the en­vi­ron­ment and land mat­ters.

Jus­tices Mathew Emukule, Said Chitem­bwe and Mugure Thande, sit­ting at the Malindi court, nul­li­fied the law, which gave the holder of the of­fice of the CJ pow­ers to ap­point mag­is­trates to han­dle land mat­ters.

They also nul­li­fied the law which gave the CJ pow­ers to as­sign judges ap­pointed to the En­vi­ron­ment Court to han­dle crim­i­nal cases whose ju­ris­dic­tion clearly falls un­der the High Court.

The three judges held that the ju­ris­dic­tion of a court is con­ferred by the Con­sti­tu­tion and not by ad­min­is­tra­tive acts of the CJ. Con­se­quently, they de­clared Sec­tion 2 of the Statute Law (Miscellaneous Amend­ments) Act of 2015 un­con­sti­tu­tional.

Also nul­li­fied is the Gazette no­tice of March 1 in which for­mer CJ Willy Mu­tunga pub­lished a list of 168 mag­is­trates who were given the power to deal with cases in­volv­ing dis­putes re­lat­ing to the en­vi­ron­ment and land, with ef­fect from March 14.

Some of the 168 mag­is­trates ap­pointed had pend­ing is­sues be­fore the Judges and Mag­is­trates’ Vet­ting Board. Their judg­ment arose out of a case which was filed by the Malindi Law So­ci­ety.

The or­gan­i­sa­tion ar­gued that the holder of the of­fice of CJ does not have pow­ers to trans­fer a High Court judge to the En­vi­ron­ment Court and vice versa. In their view, the ju­ris­dic­tion of the court to deal with the En­vi­ron­ment and Land mat­ters is con­ferred by the Con­sti­tu­tion.

The so­ci­ety said be­fore the en­act­ment of the leg­is­la­tion both its mem­bers and the pub­lic were not given am­ple time to par­tic­i­pate in the process.

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