In their ongoing pay dispute, the Kenya National Union of Teachers (Knut) wants Chief Justice Willy Mutunga to appoint a new bench on grounds that the Executive had a hand in the picking of justices Erastus Githinji, Philomena Mwilu and Festus Azangalala.
Knut lawyer John Mbaluto filed the application in the appellate court’s registry on Monday (September 28), in which teachers expressed fears that the final determination by the three judges might not be independent.
The application alleges that the President of the Court of Appeal, Justice Kihara Kariuki had been micro-managing the case. “The applicant has received reliable information to the effect that the court was directed on what to do by the President of the court, quoting the Head of State as his authority,” the application filed Monday read in part.
In the court papers, the union claims Justice Kariuki was heard saying President Uhuru Kenyatta was furious about the adjournment of the case and that the whole award by the Employment and Labour Relations Court ought to have been set aside. Justices Githinji, Mwilu and Azangalala replaced the bench composed of justices Jamilla Mohamed, Mohamed Warsame and Sankale ole Kantai. Mohamed, Warsame and Kantai had initially ordered the Teachers Service Commission (TSC) to pay the 50-60 per cent pay rise from August 1 as it argued its case, but when the case came up for hearing on September 22 they were replaced.
“The interference of the Executive with the Judiciary is a brazen attack on its independence and the rule of law,” Knut states in the court papers, adding: “…the applicant’s faith and confidence in the said president is utterly destroyed, and it’s only fair and just that a new bench be constituted.”
A letter from Knut Secretary General Wilson Sossion accompanied the application to the CJ seeking a probe of the appellate court’s president. Mr Sossion, in the letter received by the CJ’s office on September 25, alleged that Kariuki sought to know why the hearing had been adjourned by the three-judge bench on Tuesday last week. “…and said President Kenyatta who, according to him (Kariuki) was following the proceedings on television, “was furious with the adjournment,” wrote Sossion to Mutunga.
The Knut boss claimed Kariuki was of the view that the judgment of the Employment and Labour Relations Court should be set aside in accordance with the Government’s wishes. It is the same allegations in the letter that are contained in his sworn affidavit: “The pronouncements and the conduct of the president of the Court of Appeal points to an orchestrated scheme for the appeals to achieve a pre-conceived end.” At the same time, the case to stop the ongoing strike was postponed to Thursday on the basis that the judge handling it was unwell.
Thereafter, Knut officials held a press conference during which they insisted the strike is still on until they get further direction from the court on Thursday. Meanwhile, Form Four practical examinations went on smoothly Monday, according to the Kenya National Examination Council Chief Executive Officer Joseph Kivilu. He said all 185 examiners were present to administer the French, German, Arabic and Music practical exams.
