CJ lacks power to move judges, says Appeals Court

The Chief Justice has no power to transfer judges from the High Court to specialised courts or vice-versa, the Appellate Court has said.

Last year, the High Court quashed a decision that gave the head of the Judiciary powers to transfer judges from specialised courts.

Appeal Court judges Philip Waki, Roselyn Nambuye, Daniel Musinga, Gatembu Kairu and Agnes Murgor said though the High Court and specialised courts were of the same status, they were different.

“It was wrong for former CJ Willy Mutunga to appoint judges from other courts — Land, Environment as well as Employment and Labour Relations — to hear criminal cases,” they said.

Dr Mutunga did so, hoping to clear a backlog of criminal cases at the High Court.

The Employment and Labour Relations as well as the Environment and Land courts were established by Acts of Parliament.

CONSTITUTION

They have the same status with the High Court but with power to determine matters concerning employment and labour relations, and environment and the use, occupation of and title to land.

In a ruling last year, judges Matthew Emukule, Said Chitembwe and Mugure Thande said the law that gave the CJ such powers was unconstitutional.

“It is a question of what the Constitution provides in respect of jurisdiction of the High Court on one hand and the courts of equal status on the other. There is no question that persons appointed to courts of equal status have the competence to preside over matters reserved to the High Court and vice-versa,” they said.

The Court of Appeal, however, reversed a decision barring magistrates from hearing land and environment cases.

The appeal was filed by the Law Society of Kenya and the Attorney-General, among others.

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