Petitionforremoval Jscmembers 180226103321

PETITION FOR THE REMOVAL OF HON. JUSTICE DAVID MARAGA, HON.
(LADY)
JUSTICE PHILOMENA MWILU, HON. JUSTICE MOHAMED WARSAME, HON.
JUSTICE AGGREY MUCHELULE, PROF TOM OJIENDA, HON. EMILY OMINDE AND
HON. MERCY DECHE AS MEMBERS OF THE JUDICIAL SERVICE COMMISSION
TO:
THE NATIONAL ASSEMBLY,
REPUBLIC OF KENYA,
MAIN PARLIAMENT BUILDINGS,
NAIROBI, KENYA.
I, the undersigned, ADRIAN KAMOTHO NJENGA, a citizen of the Republic of

Kenya, a lawyer, an ardent defender of the constitution and a resident of Nairobi
County:
DRAW the attention of the House to the following:
1. THAT Hon. Mr. Justice David Maraga, Hon. (Lady) Justice Philomena Mwilu,
Hon. Mr. Justice Mohamed Warsame, Hon. Mr. Justice Aggrey Muchelule, Prof.
Tom Ojienda, Hon. Emily Ominde And Mercy Deche are constitutionally unfit to
hold the office of member of the Judicial service Commission (JSC), and should
be removed from office on the following grounds -
1. Serious violation of the Constitution including contravention of Chapter
Six of the Constitution;
2. Serious violation of the law;
3. Gross misconduct in the performance of functions;
4. Incompetence.
The particulars constituting the grounds are as follows-
2. THAT the aforementioned JSC commissioners have failed to promote and

facilitate the independence and accountability of the judiciary and the
transparent administration of justice contrary to Article 172 (1) of the
Constitution.
Page 1 of 8
PETITION FOR THE REMOVAL OF HON. JUSTICE DAVID MARAGA, HON. (LADY)
3. THAT the aforesaid members of the Judicial Service Commission have

seriously violated the Constitution by shielding, protecting, exonerating
and irregularly clearing judges engaged in gross misconduct. The
aforementioned members of the JSC have without any constitutional regard
or justification dismissed petitions presented to the JSC uder Article 168 (2)
against the following persons:
i. Hon. Mr. Justice David Maraga- A petition presented to the JSC by Hon.
Ngunjiri Wambugu, MP was callously dismissed without an iota of
investigation or appropriate interrogation of the fundamental issues
raised therein
ii. Hon. (Lady) Justice Philomena Mwilu-A petition by Derrick Ngumu
raising weighty issues of judicial misconduct was conveniently brushed
aside by the JSC members cited herein
iii. Hon. Mr Justice Isaac Lenaola- A petition by Kelvin Njihia, raising severe
integrity concerns against the conduct of Justice Lenaola was casually
swept under the carpet by the aforesaid JSC members
iv. Hon. Justice John Mativo- A petition presented to the JSC on 15 th
December 2017 disclosing flagrant plagiarism, outright dishonesty and
illegal alterations of Court Rulings by Justice Mativo did nothing to
awaken the conscience of the JSC members cited herein.
4. THAT the JSC members whose removal is sought herein have violated
Articles 10, 35, 73, 168 and 232 of the Constitution, by having failed to account
to the Kenyan public as to how judges who have engaged in blatant misconduct
and constitutional breaches have been let off the hook.
5. THAT the aforesaid members have in bad faith, failed and negated their
constitutional duty to enforce the Judicial Code of Conduct and Ethics (L/N 132
of 2016) even when incontrovertible evidence of breach of the code by judges
Page 2 of 8
has been tendered.
6. THAT contrary to Article 10, 27, and 73 of the Constitution, the

aforementioned JSC members have engaged in selective victimization of judges
who have exhibited diligence, impartiality and judicial independence. The cited
JSC members have irregularly and without any reasonable basis constituted a
“special committee” in a manner as to trump up allegations, bully, humiliate
and arm-twist the following judges:
i. Hon. Justice Prof. Jackton Ojwang- The allegations in this case are that
there is a tarmac road that passes near his private residence in his rural
home. It is in public domain that Hon. Justice Ojwang is on the radar
of the aforesaid JSC members for his unapologetic exercise of judicial
independence.
ii. Hon. Justice Paul Kihara- The misguided pursuit of disciplinary action
against the President of the Court of Appeal for constituting a bench to
hear an urgent electoral matter that demanded disposal on a public
holiday points to malicious agenda on the part of the aforementioned
JSC commissioners. This purported investigations by the
aforementioned JSC commissioners is entirely unconscionable in light
of Sections 13 (1) and 18 (3) of the Court of Appeal (Organization and
Administration) Act, 2015.
iii. Hon. Justices, Erastus Githinji, Martha Koome and Fatuma Sichale-
The purported investigations of these appellate court judges for
performing their duties in good faith reveals excruciating levels of
malevolence, malice and glaring witch-hunt on the part of the JSC
commissioners, and is inherently incompatible with Article 160 (5) of
the Constitution, given that the judges acted in good faith and lawfully
performed legitimate judicial functions as stipulated under Section 13
Page 3 of 8
(1) (b) of the Court of Appeal (Organization and Administration) Act,

2015 .
7. THAT contrary to Article 27, which confers equality before the law and the
right to equal protection benefit of the law, the aforesaid members of the JSC
have failed to uphold equality and freedom from discrimination by selectively
victimizing certain judges while letting others to walk scot free with phenomenal
misconduct.
8. THAT the aforesaid members have adopted a subjective, personalized and

vindictive style to handling complaints against judges. They have failed to abide
by the standards laid down by the constitution, precedents by Justice and
Magistrates Vetting Board and have even departed from the rules applied by
JSC in the Justice Joseph Mutava removal petition. The aforesaid members
have deliberately and completely abandoned all known rules or criteria in the
disposal of petitions brought against judges and judicial officers.
9. THAT contrary to Article 73 (2) of the Constitution which demands

objectivity and impartiality in decision making, and in ensuring that
decisions are not influenced by nepotism, favouritism, other improper
motives or corrupt practices; the aforementioned commissioners of JSC have
failed to demonstrate honesty in the execution of public duties.
10. THAT by using their positions to influence the conduct of judicial affairs
by judges and judicial officers, the said JSC commissioners have interfered
with judicial independence and allowed personal interests to conflict with
public good.
11. THAT as a result of the unconstitutional conduct of the aforesaid JSC

members, the judiciary has become extremely politicized, unpredictable and
highly polarized with judicial officers having to look over their shoulders, to
Page 4 of 8
avoid falling victim to the arbitrariness of the aforementioned JSC

commissioners.
12. THAT in utter neglect of duty imposed by Article 172 of the Constitution,
the aforementioned JSC commissioners, have failed to recommend to the
President, persons for appointment as judges of the Court of appeal despite
the diminished numbers of judges in the appellate court. Effectively , the cited
JSC commissioners have crippled the administration of justice at the various
Court of Appeal stations (Nairobi, Kisumu, Nyeri, Malindi).
13. THAT despite the huge financial allocations to the judiciary by

Parliament, the JSC under the stewardship of the cited members has
remained in inertia even as less than twenty (20) judges of appeal are left to
handle appeals across the country. Constitution of appellate benches has
become a nightmare in what is evidently a deliberate strategy by the
aforementioned commissioners to suppress and paralyze the Court of Appeal
in a manner that has severely compromised the citizenry access to justice .
14. THAT an advertisement put up by the JSC for recruitment of judges of

appeal in August 2017 was curiously and irregularly cancelled without
explanation or justification.
15. THAT contrary to Article 232, and Section 5 of the Public Service (Values
and Principles) Act, 2015, the cited JSC commissioners have tremendously
faltered on professional ethics, transparency, accountability to the public for
decisions and actions; and on the imperatives of sound leadership and
integrity.
16. THAT the cited JSC commissioners in the exercise of the functions
entrusted to them, failed to protect, administer and defend the Constitution
as mandated under Article 3 of the Constitution . They have failed to uphold
Page 5 of 8
the dignity and the respect for the judiciary and the judicial system of Kenya.
17. THAT the indiscrete conduct of the aforementioned JSC commissioners

has tremendously cast the reputation, prestige, authority and standing of the
Kenya’s Judiciary to horrendous disgrace, ridicule and contempt locally and
globally.
18. THAT the conduct of affairs by the cited JSC commissioners has severely
eroded and undermined the public confidence in the judiciary.
19. THAT under Articles 94 and 95 of the Constitution the National Assembly
is mandated to protect the Constitution and to resolve issues of concern to
the people. Accordingly, the National Assembly has a duty to intervene to
ensure that the Judicial Service Commission does not degenerate into further
mediocrity on account of unconstitutional conduct by its members.
20. THAT Article 251 of the Constitution confers the National Assembly the
oversight jurisdiction over every commission and independent office including
the Judicial Service Commission. Thus, the National Assembly has a
constitutional obligation to ensure that the aforementioned members of the
Judicial Service Commission, are held accountable for derogation from binding
constitutional standards.
21. THAT unless the aforesaid members of the JSC are removed from office,
the public confidence in the judiciary and the administration of justice in
Kenya will further wane or eternally diminish.
HEREFORE your humble petitioner prays that the National Assembly finds-
1. THAT Hon. Mr. Justice David Maraga, Hon. (Lady) Justice Philomena
Mwilu, Hon. Mr. Justice Mohamed Warsame, Hon. Mr. Justice Aggrey
Page 6 of 8
Muchelule, Prof. Tom Ojienda, Hon. Emily Ominde and Hon. Mercy Deche
have jointly and severally contravened the Constitution and the law;
Muchelule, Prof. Tom Ojienda, Hon. Emily Ominde and Hon. Mercy
Deche have jointly and severally committed acts of gross misconduct in
the performance of functions or otherwise;
Muchelule, Prof. Tom Ojienda, Hon. Emily Ominde and Hon. Mercy
Deche are jointly and severally incompetent.
4. THAT the National Assembly be pleased to find that this Petition discloses
overwhelming grounds for removal of the aforesaid members of JSC as
enunciated at Article 251 (1) of the Constitution.
5. THAT the National Assembly be pleased to send the petition to His

Excellency the President, for the appointment of a tribunal to investigate
the matter expeditiously, report on the facts and make a binding
recommendation to the President.
And your PETITIONER will ever pray
NAME OF PETITIONER______ADRIAN KAMOTHO NJENGA______
FULL ADDRESS____P.O BOX 17429-00100, NAIROBI_____

Page 7 of 8
NATIONAL ID. NO.___22004586_____
SIGNATURE__________________
Dated at NAIROBI this ___26th ___ day of __February_, 2018
Page 8 of 8

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PETITION FOR THE REMOVAL OF HON. JUSTICE DAVID MARAGA, HON.

I, the undersigned, ADRIAN KAMOTHO NJENGA, a citizen of the Republic of

DRAW the attention of the House to the following:

The particulars constituting the grounds are as follows-

2. THAT the aforementioned JSC commissioners have failed to promote and

3. THAT the aforesaid members of the Judicial Service Commission have

has been tendered.

6. THAT contrary to Article 10, 27, and 73 of the Constitution, the

(1) (b) of the Court of Appeal (Organization and Administration) Act,

8. THAT the aforesaid members have adopted a subjective, personalized and

9. THAT contrary to Article 73 (2) of the Constitution which demands

11. THAT as a result of the unconstitutional conduct of the aforesaid JSC

avoid falling victim to the arbitrariness of the aforementioned JSC

13. THAT despite the huge financial allocations to the judiciary by

14. THAT an advertisement put up by the JSC for recruitment of judges of

17. THAT the indiscrete conduct of the aforementioned JSC commissioners

5. THAT the National Assembly be pleased to send the petition to His

And your PETITIONER will ever pray

NAME OF PETITIONERADRIAN KAMOTHO NJENGA

FULL ADDRESSP.O BOX 17429-00100, NAIROBI_

NATIONAL ID. NO._22004586___

Dated at NAIROBI this _26th _ day of __February_, 2018

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