JSC petitioned to sack Justice Msagha over gross misconduct
Chairperson of the Women in Business committee of the Kenya National Chamber of Commerce and Industry has petitioned the Judicial Service Commission (JSC) seeking removal of Justice Mbogholi Msagha from office over gross misconduct.
The basis of the petition arises from an commercial court case.
The petition by chairperson Mary Nyachae wants the judge removed for setting aside orders granted at the Magistrate court.
Last week, Nyachae obtained a court order restraining election of chairperson of Women In Business Committee that was slated for January 21, 2020 in Sarova Panafric Hotel, Nairobi at 8:30 am.
But later on Friday Justice varied the orders of commercial Senior Residents Magistrate Maryanne Murage and allowed KNCCI president Richard Ngatia to conduct the elections without them being given an opportunity to be heard.
'Mbogholi allowed KNCCI application exparte and set aside magistrate orders paving way for the January 22, 2020 fresh elections to proceed," says the embattled chairperson.
Through his lawyer Danstan Omari, Nyachae claim that the judge did not even certify the matter as urgent before proceeding to grant exparte the substantive order sought in the motion setting aside the interim orders initially granted by Magistrate Murage.
Nyachae and KNCCI are embroiled in a tussle over the position of Chairperson at WIB.
She also accuses the judge of being incompetent and breaching the judicial Code of Conduct.
"He has extensive knowledge, experience and wisdom as a judge who took his oath of office in the year 1987 at a young age of 34 years old," says Nyachae.
She wants the judge to be investigated to ascertain any benefit he may have received for taking a deliberate legal misdirection.
“A Judge shall exercise the judicial authority independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.” Say's Nyachae.
Nyachae adds that the conduct of the Judge do not only bespeak of grave incompetence but is also suspicious and suspect of ill will, shrewdness and high handedness from the said justice who understandably lacked legal authority to direct as he did.
"It is common ground amongst practitioners in Kenya that all urgent applications filed under a certificate of urgency are filed before noon and thereafter presented before the duty judge for directions on the same day and it is common knowledge that applications filed past noon are heard or are, as practice entertained by a judicial officer the day after and directions issued thereafter", adds petitioner.
Nyachae argue that the Miscellaneous Civil Application no.23 of 2020 having been paid for at 1447 hours on January 23, 2020,it is impossible that the said Judge would reasonably have entertained it exparte on the 23rd January,2020.
"This misbehavior by the Learned Judge reasonably births suspicion about his conduct and his faithfulness to his oath of office and grant of the order by the Learned Justice through a miscellaneous application other than an appeal or review by the trial court demonstrate gross misconduct and unfathomable misbehavior from the judge." claims Nyachae.