REPUBLIC OF KENYA
THE NATIONAL ASSEMBLY OF KENYA
PETITION UNDER ARTICLE 251 OF THE CONSTITUTION OF KENYA
IN THE MATTER OF: THE CONSTITUTION OF KENYA UNDER ARTICLES 37, 119(I), 248(I), (2), (e), 249 (2), 250 and 251.
IN THE MATTER OF: REMOVAL FROM OFFICE OF A MEMBER OF A COMMISSION UNDER ARTICLE 251 (I) (a) (b), (d) OF THE CONSTITUTION OF KENYA.
IN THE MATTER OF: THE CHIEF JUSTICE OF THE REPUBLIC OF KENYA, PRESIDENT OF THE SUPREME COURT AND CHAIRPERSON OF THE JUDICIAL SERVICE COMMISSION, THE HON. DR. WILLY MUTUNGA.
IN THE MATTER OF: THE HON. DR. WILLY MUTUNGA.
THE NATIONAL ASSEMBLY
PETITION FOR REMOVAL OF THE HON. DR. WILLY MUTUNGA FROM OFFICE OF CHIEF JUSTICE AND CHAIR OF THE JUDICIAL SERVICE COMMISSION AND PRESIDENT OF THE SUPREME COURT OF KENYA UNDER ARTICLE 251 (I) OF THE CONSTITUTION OF THE REPUBLIC OF KENYA.
THE HUMBLE PETITION OF THE MEMBERS OF THE MOMBASA LAW SOCIETY AND CONCERNED CITIZENS OF THE REPUBLIC OF KENYA. SHOWETH THAT:-
WE the undersigned PETITIONERS are citizens of the Republic of Kenya, including Advocates who are Members of the Mombasa Law Society. Our address of service for purposes of this Petition shall be care of MOMBASA LAW SOCIETY SECRETARIAT. P.O.BOX 89928-80100 MOMBASA.
THE SUBJECT of the Petition is President of the Supreme Court, THE CHIEF JUSTICE and Chair of the Judicial Service Commission The Hon. Dr. Willy Mutunga CJ., duly appointed pursuant to the Provisions of the Constitution of the Republic of Kenya. Hereinafter called “The Chief Justice”.
Your Petitioners hereby Petition for the removal of The Hon. Dr. Willy Mutunga Chief Justice from office of President of the Supreme Court, Chair of Judicial Service Commission and Chief Justice of the Republic of Kenya pursuant to provisions of Article 251(I) (a), (b) and (d) of the Constitution and all the enabling provisions of the Constitution. Your Petitioners anchor and base this Petition on the following grounds.
THE GROUNDS FOR THE PETITION HEREIN:-
(a) Serious violation of the Constitution and other laws, serious violation of Chapter six of the Constitution.
(b) Gross misconduct in the performance of the functions of the office of the Chief Justice, President of the Supreme Court and chair of Judicial Service Commission.
SET OUT OF FACTS CONSTITUTING
GROUNDS FOR REMOVAL FROM OFFICE
UNDER ARTICLE 251 (2)
1. Your Petitioners state that the Honourable Chief Justice Hon. Dr. Willy Mutunga is an unfit person to hold any public office The Hon. Dr. Willy Mutunga (CJ) does not have a High Moral Character, Integrity and Impartiality expected of him as Head of the Judiciary, President of the Supreme Court and Chairperson of the Judicial Service Commission to continue to hold office and discharge the functions and mandate of his office. He now lacks credibility to continue discharging this mandate.
2. The Hon. Dr. Willy Mutunga, Chief Justice has discharged his Constitutional mandate in total contravention and violation of the unambiguous and explicit provisions of the Constitution of the Republic of Kenya and in total infringement and disregard of Chapter Six of the Constitution to wit.
(a) The conduct of The Hon. Dr. Willy Mutunga, Chief Justice is not consistent with the purposes and objects of the Constitution.
(b) The Hon. Dr. Willy Mutunga, Chief Justice has from the date of assuming office conducted himself in a manner devoid of respect for the laws and for the people of Kenya.
(c) The Hon. Dr. Willy Mutunga, Chief Justice has brought dishonor and disrepute to the Judiciary and indignity to the office of the Chief Justice of the Republic of Kenya, The Hon. Dr. Willy Mutunga has administered the Judiciary in an inept, inefficient and opaque manner.
(d) As a result of this maladministration of the Judiciary by The Hon. Dr. Willy Mutunga has made the Public loose confidence in the institution of the judiciary and its international respect has tremendously dissipated. The public has no confidence in Dr. Willy Mutunga CJ. at all.
(e) The Hon. Dr. Willy Mutunga (CJ) as such has breached provisions of Article 73(1) (2), (b) of the Constitution of the Republic of Kenya in all his dealings as The Chief Justice. He ought to be removed from office.
WHAT IS THE ACTUAL AGE OF DR. WILLY MUTUNGA?
3. The Hon. Dr. Willy Mutunga’s age is way over and above the Constitutional set limit of 70 years qualifying him to occupy the office of the Chief Justice. The Hon. Dr. Willy Mutunga is illegally occupying the office of the Chief Justice. Dr. Willy Mutunga is unconstitutionally discharging the mandate bestowed up on the office of The Chief Justice. He ought not to continue in office until this fact is determined beyond para adventure. To let an unqualified person to occupy the highest office of our Judiciary is to court a Constitutional crisis.
NO RETIREMENT SCHEME FOR JUDGES IN KENYA
4. (a) The Hon. Dr. Willy Mutunga as Chair of the Judicial Service Commission has completely failed to guide the Judicial Service Commission to establish and develop or design a policy gauged towards securing the judges retirement benefits or pension scheme.
The lack of a retirement plan due to incompetence of the Chair of the Judicial Service Commission has led to a crisis in the Judiciary. As we speak there is no retirement scheme for Judges from the High Court to the Supreme Court.
The Hon. Dr. Willy Mutunga as Chair of the Judicial Service Commission has failed to develop and guide the entire Judiciary on the applicable policy as relates to the retirement of Judges. This paucity of administrative acumen has led to a Judiciary at war with its self.
(i) The Deputy Chief Justice Hon. Kalpana Rawal (DCJ) has now taken the Judicial Service Commission chaired by The Hon. Dr. Willy Mutunga to court over the retirement issues.
(ii) A Judge of the Supreme Court teaming up with another Judge of the High court have filed suits in court over the issue of retirement age.
(iii) There is a lot of discontent within the lower cadre of judicial officers over this issue of retirement and terminal benefits.
(iv) The incompetence of The Hon. Dr. Willy Mutunga has left the issue of whether the contractual terms of service of judges employed under the old Constitution is affected by the oaths of office they took under the Constitution of Kenya 2010.
(v) Currently Judges in Kenya are at war with the Judicial Service Commission in respect to:-
Whether their retirement age is based on and determined under the repealed Constitution or the Constitution of Kenya 2010.
Whether the transitional clauses under the Constitution of Kenya 2010 are applicable to the Judges who were employed by the Judicial Service Commission under the repealed Constitution.
NO JUDGES TO PRESIDE OVER ELECTION PETITIONS IN 2017
4(b). In essence The Hon. Dr. Willy Mutunga never had anticipation of the enomity of the impending crisis the Country is about to be plunged into after the 2017 General Elections.
The Hon. Dr. Willy Mutunga due to incompetence has failed to advise the President, The Country, Judicial Service Commission and The National Assembly that in a span of about 18 months over 60 Judges will have to leave office due to the Constitutional age limitation under Article 167(i) of the Constitution of Kenya 2010.
The net effect of this calamity is that the Country is about to be plunged into a self invented Constitutional crisis in our Judiciary on the basis of lack of fore sight and incompetence of the Chair of the Judicial Service Commission, The Hon. Dr. Willy Mutunga.
This will destroy Kenya in proportions worse than what was witnessed during the Post Election Violence in 2007 as there shall not be enough competent judges to handle the flood gate of election disputes and petitions in 2017 without a competent judiciary to preside over the same.
4.(c) The Judicial Service Commission under the watch of The Hon. Dr. Willy Mutunga has failed to initiate the process of recruitment of competent judges in anticipation of the massive retirement herein earlier alluded to.
Failure to convene the Judicial Service Commission to deliberate and make an appropriate decision in respect to the Petition lodged by the members of the Mombasa Law Society for the removal of The Chief Justice under Article 168 of the Constitution which amounts to a serious violation of the Constitution.
The Members of The Mombasa Law Society and other litigants are citizens concerned with the incompetence and lack of integrity of The Chief Justice The Hon. Dr. Willy Mutunga hence have petitioned for his removal under Article 168(I).
4. (d) The Hon. Dr. Willy Mutunga has deliberately failed to inform the Country through the press that there is a challenge on his competence and intergrity through a Petition to the Judicial Service Commission for his removal from discharging mandate of the Office of Chief Justice. This in itself is evidence of gross misconduct by the Chair of Judicial Service Commission.
The Hon. Dr. Willy Mutunga lacks objectivity and impartiality in decision making. His decisions are influenced by narrow mindedness, cheap media publicity, cronyism, nepotism, favourism and other improper and corrupt practices.
4.(e) He has mortgaged the office of the Chief Justice to foreign and strange agencies who are controlling the independence and proper functioning of the Third Arm of Government. He lacks requisite independence of mind. Evidence is found in the Ford Foundation being the employer of Staff in his office, compromising heavily the letter and spirit of Article 172(I) of the Constitution.
A Portfolio of Chief of staff was unconstitutionally created by the Ford Foundation who have their employee Mr. Duncan Okello usurping the functions of the Chief Registrar of the Judiciary. The Hon Dr. Willy Mutunga has allowed the judiciary to be controlled by the Ford Foundation through a Mr. Duncan Okello due to his inability to offer sound leadership and his paucity of administrative acumen.
5. The Honourable Dr. Willy Mutunga is presiding over a den of corruption. He is clueless and completely lacks the strategy or will power to fight and stamp out corruption in the Judiciary.
Evidence is clearly found foremost in his latest speech to the Judges at the Annual Judges Colloquium at Mombasa on August 3rd, 2015. He has a penchant and predilection to cry about issues he should firmly tackle as Chief Justice. The Chief Justice continues to issue hollow warnings to his troops (the judges) about threat of fresh vetting as the Judiciary grounds to a halt under the hail of corruption. He has failed to act decisively on acts of judicial misconduct and corrupt incidences. The Hon. Dr. Willy Mutunga Chief Justice has instead chosen massive transfer to placate a gullible public as a tool to fight corruption in the Judiciary.
6. The Hon. Dr. Willy Mutunga Chief Justice has been cited in gross misconduct by the Public Accounts Committee of The National Assembly through the 11th Parliament and the Auditor General. He has been indicted as unfit to hold office and preside over the affairs of the Kenyan Judiciary.
7. The Hon. Dr. Willy Mutunga Chief Justice is mentioned as having improperly and irregularly received money from the Judiciary fund. He irregularly drew money as leave allowance fully aware that he was not entitled to the said funds.
This conduct amounts to corruption. His hands are tied and his mouth too soiled to continue in office. He thus cannot fight the vice. His fingers are all over on the cookies jar. Evidence is found in the Public Accounts Committee Report.
8. Presiding over massive and huge financial impropriety at the Judicial Service Commission which led to the recommendation for investigations by Public Accounts Committee. The Hon. Dr. Willy Mutunga by his conduct has covered up such massive and mega corruption in the Judiciary. This is evidenced by the Report of the Public Accounts Committee of Parliament. In his own speech to his colleagues at the last Annual Colloquium of Judges he alludes to the fact that “they continue to cover up and protect colleagues.”
9. The Public Accounts Committee of Parliament found The Hon. Dr. Willy Mutunga Chief Justice guilty of making irregular instructions for payment of funds contrary to advise from Treasury on the management of public funds. The Public Accounts Committee findings on the Honourable The Chief Justice must further be investigated by a Select Committee of Parliament and The Ethics and Anti Corruption Commission.
10. The Public Accounts Committee found him culpable for Paying Commissioners fraudulent allowances for meetings not attended thus defrauding the Judiciary and the taxpayer of the much needed money which has never been recovered.
Evidence is disclosed in the PAC report that has not elicited any action or reaction from The Chief Justice Hon. Dr. Willy Mutunga either way. It has been consumed, swallowed and bliss abounds in his profound silence.
11. The Public Accounts Committee has made a damnatory Scathing and serious Indictment against the Chief Justice of the Republic of Kenya The Hon. Dr. Willy Mutunga.
“In total disregard of the Treasury’s written advisory, the Chief Justice on several occasions went ahead to direct JSC to approve irregular payments as directed by the Finance and Administration Committee.
The Chief Justice was found to be a beneficiary of irregular salary advances from the Judiciary to the tune of Kshs. 1,564,440.
The Chief Justice must also share responsibility for the losses incurred by the judiciary through single sourcing of a security consultation /contractor who he personally introduced to the CRJ and was subsequently engaged and paid large sums of money without due process.”
On this part the report (PAC) recounts at page 139 para. 19 as follows:-
“19. The Security upgrades implemented by Mr. Simiyu Werunga a Security Consultant, and a contractor, should be subjected to detailed audit by an independent security consultant, working jointly with other relevant departments of the Government, and any sums paid over and above fair market value be claimed from the Consultant /Contractor. The Chief Registrar should immediately engage the beneficiaries of this project with a view to recovering public funds used in their private dwellings. In the meantime, the Chief Registrar should stop, forthwith, further injection of public resources in maintaining security installations in these private dwellings”.
This is the contractor introduced and single sourced by the Hon. Chief Justice Dr. Willy Mutunga.
12.(A)The Hon. Dr. Willy Mutunga Chief Justice has clearly flouted his mandate under the Judicial Service Act 2011 by overseeing a regime specialized in committing illegalities and irregularities in the execution of its mandate which include:-
Overriding of stipulated controls.
Overstepping of given mandates.
Failing to implement the policy framework.
Haphazard actions and breach of procurement laws and regulations.
Lack of any internal control systems.
(B)The Public Accounts Committee report reports the following instances:-
Failure to keep minutes of meetings.
Irregular approval of payments to suppliers.
Failure to develop Human Resource and Training Policies.
Acquisition of the Chief Justices’ residence for Kshs. 310 Million.
Lease of Elgon Place and non occupation of the premises.
Single sourcing and direct procurement of its offices at Mayfair Centre.
Advance payment of rent for Mayfair Center for 2 years at Kshs. 7,392,000.00 before occupying the office and
Security equipment installation without proper contract.
(C) In its observations and findings the Public Accounts Committee noted
Weak leadership and governance structures.
Ineffective judiciary transformation framework (JTF)
Sudden increase in budgetary allocations
Strained working relationships under the JSC.
Interference of the Judiciary operations by the JSC.
Irregular procurement procedures and processes.
13. The Hon. Dr. Willy Mutunga Chief Justice is a captive of about 5 people who control his every move. The Hon. Dr. Willy Mutunga Chief Justice lacks requisite honesty. Personal issues have clouded his sense of judgment creating incessant conflict of interest detrimental to the execution of his mandate by his continued association with the Ford Foundation through a Mr. Duncan Okello.
14. Without regard to judicial integrity being very insensitive and intolerant to any criticisms, The Hon. Dr. Willy Mutunga Chief Justice has hoarded and bludgeoned sense out of the Supreme Court Judges. They have threatened to and or actually filed a suit for defamation (All the Supreme Court Judges) without exhausting any other formal complaint and redressal systems provided in law.
This is judicial misconduct, gross misbehavior and inadequacy on the part of the Hon. Dr. Willy Mutunga in being part of such a scheme.
15. In further demonstration of gross incompetence the Chief Justice does not have any policy in administration of justice known to consumers of justice. One such policy critically needed is the transfer of staff policy. The other is investment and procurement policy. The other is the Administration and staff development policy.
The Chief Justice Hon. Dr. Willy Mutunga has incompetently dealt with financial administration, human resource Administration and transfer of staff in the judiciary. There is grim and macabre discontent and apathy among the Judicial staff from the Supreme Court to the Lower cadres like sweepers in the Judiciary. The Public has lost confidence in the Judiciary. Incompetent transfers of staff has stalled operations of courts all over the Country. The Court system is a time bomb waiting to explode any time soon. Revulsion against the Chief Justice by Judicial officers is on the extreme. The Judicial officers are extremely demoralized.
16. The poor and incompetent transfer system has in effect impeded the peoples aspirations as regards access to justice under Article 48 of the Constitution. More than ever it is impossible now to get justice under Hon. Dr. Willy Mutunga’s regime. A transfer system meant to break cartels of corruption and cabals of ineptitude as per Dr. Mutunga’s gospel definitely means that you spread the disease of corruption to every part of the Republic. He has unfairly condemned his entire judiciary as corrupt as a reason to effect transfers.
17. The incompetent and ill advised massive transfer of all staff from Court stations purely demonstrates a Chief Justice who is grossly incompetent and clueless in management of a monolithic organization like the Kenyan Judiciary.
18. The ill advised, massive, wholesome transfers were done devoid of the merits nor any intelligence. It was rush and opaque in manner, without consideration of individual capacities, needs and experience of the personnel. The long term effects of such massive reorganization through unnecessary transfer are dire. In some stations like Mombasa, Meru, Kisumu, Eldoret, Kakamega services have ground to a halt. Hon. Dr. Willy Mutunga has just invented a super way of creating backlog.
The transfers done without due regard to the experience, needs assessment and institutional memory and the ability of the officers to manage and cope with work load cripples the judiciary in all its dimensions.
19. “JUSTICE AT LAST JOKE”. The Chief Justice in an ill conceived, ill advised, populist, irregular and comical activity called Justice At Last appointed judges to dawdle the Republic of Kenya in a span of 2 weeks in selected stations like Mombasa, Meru and Kakamega to get for him cheap statistics for media publicity.
He sought to dismiss thousands of cases pending in court. This unreasonable Non judicial move was executed by judges who had just been appointed.
The Chief Justice gave them stern instructions to dismiss pending cases filed before the year 2010 and send statistics back home to the Chief Justice to parade to the media to gain cheap media acceptance and mileage. His pursuit for gaudy media publicity and articles and photos in newspapers and social media amazes as it tickles intelligence.
In Mombasa the judges were competing on how many cases each new judge can dismiss in an hour. Court clerks were even writing dismissal orders scripted by the judges in heaps of files for the judges to sign and endorse in Chambers.
20. The justice at last joke was as unconstitutional as it was erratic. It was done in contravention of the simple laws that govern civil litigation and contrary to Article 48 of the Constitution which guarantees access to justice for everybody. On this point alone the incompetence of The Hon. Dr. Willy Mutunga (CJ) has been enshrined in our Judiciary for ages to come.
(a) No Notices were served to the parties, their lawyers or the public.
(b) There was No public participation aspect of the decision to dismiss cases without a hearing contrary to Article 50(I) of the Constitution.
(c) Court Users Committees were not consulted and were totally excluded as part of public participation.
(d) The Law Society of Kenya as a stakeholder was totally excluded from the same exercise yet Advocates are officers of the Court at the heart of the justice system.
(e) The Chief Justice was eager for statistics to parade to the media and public without due regard to substantive justice.
(f) Litigants were not afforded an opportunity to set down the cases for hearing as ordinarily the hearing dates are granted to litigants on a quota and quarterly basis.
21. In Mombasa thousands of case lists were poster pasted with black cello tape and a substance akin to wheat flour sludge on Court walls. It was like an election campaign, posters littered on all the Court corridors, all walls upto the toilets and stair cases, basement walls and every other place with a wall surface in the Mombasa court building.
According to Hon. Dr. Willy Mutunga CJ this constituted Proper Service of judicial process under the law. Judiciary Sweepers, cleaners and messengers were stationed at the Court building in Mombasa and all entry points to Mombasa Law Courts and were beckoning and calling passing crowds and Counsels to view the day’s cause list. The Cause List would come out at 9.00 am in the morning. Each daily list had up to 300 cases. The judges proceeded in a such manner for 10 days.
This funny and comical exercise was done against the back drop of chronic lack of adequate judicial officers across the stations in the country. This was pure hawking of incompetence to our intelligence, politely stated, it was judicial ineptitude refined.
The 3 presiding newly appointed judges in Mombasa when challenged always stated that they were under strict instructions not to hear any party, even where litigants were ready to proceed. No hearing proceeded and surprisingly active cases which had hearing dates or were in Court over a few months earlier were dismissed. This scenario has created a quagmire as parties are seeking to revive the cases for hearing, but the Chief Justice has ordered the parties not to be allowed access the files. This is the information from the registries staff.
22. The discriminatory criteria for choosing the cases for dismissal still remains a mystery and is still opaque upto date. Only the Honourable Dr. Willy Mutunga The Chief Justice could sanction such an arbitrary and incompetent exercise. The Hon. Dr. Willy Mutunga (CJ) therefore cannot comprehend the serious ramifications of this abuse of office and due process. This epitomized pure incompetence in administration justice. It is a breach of Articles 27, 28, 47, 48 and 50(1) of the Constitution.
23. Due to incompetence Hon. Dr. Willy Mutunga CJ., has failed to comprehend the underlying and systemic causes of back log of cases in Kenyan Courts. He has chosen not to attempt to understand the same. The root cause of the shame, apathy and stalling of judicial process is due to the incompetence of the Head of the Judiciary.
The Chief Justice has thus sanctioned violation of the right to a fair hearing under Article 50(I) of the Constitution.
IMPROPRIETY, MISMANAGEMENT, AND PILFERAGE OF JUDICIARY FUNDS.
24. The Chief Justice is presiding over a haven of corruption. Under his acquiescence the Judiciary has lost billions of shillings courtesy of his lack of probity in financial management.
This infact led to the removal from office of the Chief Registrar of the Judiciary by the Judicial Service Commission. The Head of the institution The Hon. Dr.Willy Mutunga who presided over this gradual merciless looting and loss of billions of shillings has pushed the buck and pretends to be innocent. He must be held culpable and accountable personally for the mess due to his incompetence and tacit acquiescence.
The Chief Justice has failed to address concerns of the Consumers and stakeholders of the justice system in the appointment, posting, transfer and distribution of judicial officers. Consequently this has affected the smooth operation of the judiciary and negatively impacted on access to justice as contemplated in Article 48 of the Constitution and it is an abdication of responsibility under Article 172(I) of the Constitution.
The Chief Justice has failed to have due regard to individual capacity, merit and experience whilst undertaking transfers and deployment of Judicial Officers. Consequently, there has been a loss of institutional memory leading to a chaotic situation and collapse of the administration of justice. This has resulted in lack of clear system of handing over/taking over in affected court stations countrywide; a case study is court stations.
25. The Chief Justice has persistently failed to substantively have public participation in the administration of justice hence creating an arbitrary, opaque and autocratic system which is not responsive to the needs, rights and concerns of the citizenry and consumers of justice. In construction and repair of new court buildings where the circumstances do not justify the exorbitant budgetary allocation. The case studies are buildings in Mavoko, Wanguru, Othaya, Tala, Marimanti, Garsen and Kakamega commissioned by the Hon. Dr. Willy Mutunga CJ. among others. The Hon. Chief Justice has failed to carry out a forensic audit to date which amounts to abdicating his duties and responsibilities as Head of the Judiciary.
26. The Petitioners shall seek that the entire report of the Public Accounts Committee emanating from the National Assembly of Kenya, the 11th Parliament, Third Session 2015 published by the
DIRECTORATE OF COMMITTEE SERVICES.
TITLED UNDER THE HEADING
“PUBLIC ACCOUNTS COMMITTEE”
REPORT ON THE JUDICIAL SERVICE COMMISSION (JSC)
AND THE JUDICIARY SPECIAL AUDIT REPORT OF MAY, 2014
be admitted and the contents do form part of the facts in support of this Petition.
The Report has been signed and executed by 27 members of the National Assembly constituting the Public Accounts Committee (PAC) as an affirmation of their approval and confirmation of its accuracy, validity and authenticity.
GROSS MISCONDUCT OR MISBEHAVIOUR
27. The Honorable The Chief Justice is a person operating the judiciary under the “SLY MODE”, untrustworthy, unreliable and a man who thrives on pettiness and cronyism. He is an outright and absolute liar.
The Mombasa Law Society has made various communications and representations in writing to him but he never keeps his word on simple straight forward issues letting them turn into a crisis. He does not understand public participation and stakeholders input in judiciary governance.
On 20.3.2013 after immence agitation for redress the Chief Justice convened a meeting to address the Mombasa Law Society on two issues.
(1) The location of the Court of Appeal in Mombasa and Malindi.
(2) Transfer and shortage of Judges.
It was agreed and resolved during the meeting that:-
(a) The decentralization of the Court of Appeal to Malindi was to be held in abeyance until May, 2013 to facilitate the Judicial Service Commission to convene meeting with the Mombasa Law Society to deliberate and resolve the issue.
(b) The Chief Justice went ahead in blatant disregard of the agreement and set up the Malindi Court of Appeal at the end of March, 2013.
(c) The immediate reversal of the temporary deployment of Hon. Judge Francis Tuiyot to Busia High Court which never came to fruition.
(d) There was to be a replacement for Hon. Justice Mwongo which never for came to fruition.
(e) There was to be a posting of 3 Judges to Mombasa after recruitment to bolster the Admiralty Court which he never honoured.
28. (a) The Chief Justice decided to station the Court of Appeal in Malindi without realizing the wide ramification the decision was to have on the legal economy of the country. The decision was without any public participation at all. Now Mombasa after agitation has to contend with a revolving circuit of the Court of Appeal sitting in Mombasa periodically. This is a waste of resources and an ingredient of incompetence and misbehavior and misconduct.
(b) 95% of all cases lodged in the Court of Appeal in Coast region emanate from Mombasa from a population of about 600 Advocate and others commuting from various parts of the Country. Malindi town has about 50 Advocates stationed there.
29. ADMIRALTY LAW the Chief Justice The Hon. Dr. Willy Mutunga set up an Admiralty Division of the High Court in Nairobi on assuming office despite the fact that the sea where the practice is suitable is in the Coast. After complaints from Lawyers and the stakeholders he set up a committee chaired by Justice Havelock. The Committee was quietly disbanded. The Country does not have an Admiralty Division to deal with Marine related issues. All Admiralty cases are now filed in South Africa and Kenya has lost out on the same. This is sheer misbehavior, misconduct and incompetence.
There is an atrocious crippling situation in Coast counties and Mombasa Law Courts due to the shortage of judicial officers. Judges are transferred and not replaced, magistrates are transferred and not replaced, and support staff are transferred and not replaced. Judicial services in Coast Province and Mombasa as a fact have been crippled under the watch of the Chief Justice.
30. The Honorable The Chief Justice chooses to answer concerns directed to him in the media. Deliberately misrepresenting facts and statistics to suit public approval. He runs the judiciary through the press.
31. Contrary to the provisions of Article 162(2) of the Constitution and in utter violation of the same the Hon. Chief Justice has on various occasions attempted unconstitutionally to cloth courts with jurisdiction where none exists. These are courts dealing with employment and Labour Relations and Environment and Land Courts by incompetently purporting to give directions for them to preside over cases out of their constitutional scope.
Luckily many of this Courts have seen through the unconstitutionality of his actions and the sheer incompetence and refused and declined jurisdiction. The following illustrate the same:-
(i) Karisa Chengo & Others –vs- Republic e KLR .
(ii) Kibwana –vs- Said  e KLR.
(iii) Gladys Boss Sholei –vs- JSC & Ano. e KLR.
In all these matters the Chief Justices’ unconstitutionalities and incompetence has been rebuffed by the High Court and Court of Appeal. These has been at a great loss to the consumers of justice.
WAR OF THE COURTS
32. The Chief Justice Dr. Willy Mutunga has presided over the Judicial Service Commission in utter derogation from the requirements of Article 172 of the Constitution. There is general and extreme apathy disgruntlement and revulsion in the incompetent, nepotistic and punitive manner in which the mandate of the Chief Justice is executed.
The Chief Justice has failed to craft a judicial culture of accountability and independence. He presides over the Judiciary in an inefficient, ineffective and opaque manner which has hindered the administration of justice. Evidence is found in the following acts.
(i) There is a shameful struggle, tussle and war between the Supreme Court and the Court of Appeal. This unhealthy lack of symmetry can openly be seen in defiance to his orders to move to an unhealthy building by the Court of Appeal judges, coupled with contradictory jurisprudence from the two apex Superior Courts.
(ii) There are various press reports the latest being in the Sunday Nation Newspaper of 23rd August, 2015 titled “Magistrates seek justice in new tussle with Judicial Commission”. It is evident from an analysis of the said Article that a negative implosion is happening in the judiciary under the watch of Chief Justice Dr. Willy Mutunga, due to his incompetence.
(iii) Transfer is issued as a tool to punish and reward loyalty to the Chief Justice and the Chief Regsirarar of the Judiciary.
33. The Chief Justice is petty and meddles in funny small issues. Carpets, Sofa Sets and other furniture in Judges Chambers in Nairobi are furnished according to loyalty to the Chief Justice.
The situation is so grave that some judges have been allocated 6 armed police guards round the clock and official drivers while some have none. This is done depending on how close you are to the center of judicial power. (The Chief Justice).
The above issues are done so as to interfere with the judicial independence of Judges. The Transfer to far flung new stations is used to slow down progressive brilliant hardworking experienced judges and Magistrates who are independent and do not placate and pander to his whims. This is meant to waste them up.
In short he is a Judicial Monarch who has a voracious appetite for cultic attention. He wants to be praised and worshipped by all under him to hide his inadequacies and incompetences.
34. Accompanied herewith is a bundle of Documents to support the Petition in a schedule marked A.
HEREFORE your Humble Petitioners pray that Parliament invokes the mandatory Constitutional provisions under Article 251 of the Constitution of Kenya 2010 for the removal from office of the subject of the Petition The Hon. Dr. Willy Munywoki Mutunga, from the office, Chairperson Judicial Service Commission and Chief Justice of the Republic of Kenya with immediate effect.
AND YOUR PETITIONERS WILL EVER PRAY.
DATED at MOMBASA this……26th……. day of……September…….2015.
SIGNED BY YOUR PETITIONERS
THE MOMBASA LAW SOCIETY
THE COUNCIL OF THE MOMBASA LAW SOCIETY