, NAIROBI, Kenya, Mar 23 – Justice Nicholas Ombija has challenged the Judges and Magistrates Vetting Board declaration that he is unsuitable to continue serving as a judge.
Ombija has submitted to High Court Justice Weldon Korir that he served the Board with a notice of early retirement prior to their declaration and they therefore had no business taking a position on his suitability.
“JMVB has no jurisdiction to vet a judge who has voluntarily retired from judicial service.”
He has also called into question the process through which the decision was reached as one member of the Board was not party to the deliberations and therefore did not append his signature to the report on Ombija.
He is seeking to have the JMVB declaration of unsuitability quashed describing it as a blight on his record as a judge despite it having no impact his terminal benefits.
His application will be heard on March 30, a day after the JMVB is required to submit its response.
The JMVB on March 17 declared Ombija, for the second time, unsuitable to continue serving as a judge after rejecting his notice of early retirement.
The Board rejected the notice on the grounds that the option of early retirement was no longer available to the judge whom they first found unsuitable in 2012 before agreeing to review their decision.
“The option of retirement afforded to a judge who did not wish to be vetted had to be exercised within three months of the commencement of the (JMVB) Act. The date of commencement of the Act was May 19, 2011,” Board Chairman Sharad Rao explained.
All judges who were serving at the time the Constitution was promulgated on August 27, 2010, were required by law to undergo fresh vetting if they were to continue in office or opt to retire early.
The Board agreed to put aside its initial finding of unsuitability in Ombija’s case after he complained of apparent bias.
He later challenged the authority of the JMVB in the High Court where his application was dismissed. His appeal to the Court of Appeal was however successful before the Supreme Court weighed in and directed that he be re-vetted.
There being no higher court to appeal to, Ombija wrote to Rao on March 8 – a day after the Supreme Court rendered its decision – informing him of his decision to forgo his seat on the bench.
The Board was tasked with evaluating complaints that Ombija harassed a female advocate and sent a girl to an all-boys borstal in Kitale, among others.