It is possible, but not easy, for the Supreme Court to review a judgment it has made when the conduct of one judge has been questioned, lawyers have told the Sunday Nation.
Anyone wishing to have such a review done, a lawyer said, can argue using a precedent set by the highest court in the United Kingdom where judges in 2000 overturned their own decision relating to the indictment of one-time Chilean dictator Augusto Pinochet, now deceased.
Judges in the House of Lords changed an earlier decision after it emerged that one of the judges, Lord Hoffman, was a chairman of Amnesty International Charity Limited that is related to Amnesty International, which was a party to the case.
“They can use the Pinochet matter to appeal to the conscience of the Supreme Court using those precedents and using the opportunity provided under the Supreme Court rules; that [Justice Philip Tunoi] was interested in the case … and so a new Bench can be constituted, where he does not sit, to review the decision,” said Nairobi-based lawyer Moses Owuor.
Mr Owuor was commenting on plans by Kabete MP Ferdinand Waititu to approach the Supreme Court to review a judgment that confirmed the election of Evans Kidero as Nairobi Governor, following Friday’s announcement by the Judicial Service Commission (JSC) that there was satisfactory evidence of misconduct.
Lawyer Ahmednasir Abdullahi announced on Friday that Mr Waititu had tasked him with challenging the decision in which Justice Tunoi was one of the majority deciders.
“By next week we shall file an application in the Supreme Court to declare the Nairobi Governor seat vacant and throw out Governor Kidero,” he wrote.
“Honourable Waititu today instructed his lawyers led by Paul Muite, myself and Harrison Kinyanjui to move to the Supreme Court and set aside the Kidero judgment.”
However, Law Society of Kenya Chairman Eric Mutua and three lawyers who spoke to the Sunday Nation said it would be a long-drawn-out battle for Mr Abdullahi’s plan to succeed.
Speaking to Citizen TV on Friday, Mr Mutua said it was too early for Mr Waititu to approach the court based on the findings of the JSC.
A similar view was held by lawyers Dennis Mosota and Mr Owuor.
However, Kisumu-based lawyer Onyango Jamusumba, who is currently engaged in a case seeking the Supreme Court to review a judgment it made on an election petition concerning the Nyando parliamentary seat, said Friday’s announcement was enough for Mr Waititu to move to courtT