understands that the Vetting Board is a body constituted by the Parliament
of Kenya through the Vetting of Judges and Magistrates Act (Act No.2 2011)
to review, within a certain time period, the suitability of judges and
magistrates in office from the effective date of the Act. The Vetting Board
subsequently produced its report on 25 April 2012.
65.
As accurately indicated by the Complainant, the Supreme Court did indeed
confirm the finality of the Vetting Board's conclusions by affirming that a
/I
removal, or a process leading to the removal, of ajudge, from office by virtue of the
operation of legislation ... shall not be subject to question in, or review by, any
court"?».
66.
The Commission is of the view that while the decision of the Supreme Court
may preclude a Judge or a Magistrate who has been found unsuitable to
serve from appealing the Vetting Board's decision, it does not render the
same true in regard to the domestic cases that the Complainant is pursuing
in local courts. The aforementioned domestic cases are separate and distinct
from the decision of the Vetting Board as to the suitability or unsuitability
of judges to serve. As held by the Supreme Court, the Vetting Board is not
a court of law, and accordingly, it did not make any determinations as to
whether the rights of the Complainant were violated in any of the specific
complaints that were brought before it by the Complainant alleging that
certain Judges had discriminated against him. As earlier indicated, during
the vetting process, the Complainant had allegedly submitted complaints
to the Vetting Board claiming corruption amongst Judges of the Court of
Appeal. The Vetting Board merely acknowledged the complaints and stated
that it "will contact the LSK [Law Socien) of Kenya] in this respect [and that] ...It
is not in a position to make a finding against the Judge in respect of these
complaints" .
67.
The findings of the Vetting Board as to the existence of corruption in the
judiciary does not prevent the Complainant from appealing the final
decisions of the domestic cases he is involved in to the Court of Appeal in
some cases and to the Supreme Court in others, as the majority of these cases
are at the High Court. As per sections 163 - 165 of the Constitution of the
Republic of Kenya (2010), decisions of the High Court may be appealed to
the Court of Appeal, whereas cases at the Court of Appeal may be appealed
to the Supreme Court as of right in any case involving the interpretation or
1/
application of this Constitution; and in any other case in which th
"
Court,
')
~m:2;;I-WIIJ.ol
or the Court of Appeal, certifies that a matter of general puql ,_~ilif-V11ta1Jfi"t'
~O'. r.
h
b .1,o~~f
th e-......pres
.q"'-o
Ngoge's
domestic. cases, w hiich f orm teas
v
~a
oy
Communications,
are therefore entirely separate
diS~ct
~fo~ ~ .
decisi~n of the Vetting Board, at least in so far as eXli\.~a~J.~tiOri
of'dom~qCjt
remedies are concerned.
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20
As above, See also Constitution
of Kenya, Sixth Schedule, Article 23 (2)
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15