•Apex court holds that Mutava’s conduct amounted to gross misconduct
•He was dismissed by President Kenyatta as recommended by tribunal
The Supreme Court yesterday upheld a decision sacking a judge over gross misconduct, signaling the Judiciary's commitment to the fight against corruption.
Sealing the fate of Joseph Mutava, a former High Court judge who was removed three years ago, the Supreme Court in a unanimous decision dismissed an appeal he filed challenging his removal.
A tribunal chaired by Justice David Maraga, then a Court of Appeal judge, recommended Mutava's removal. President Kenyatta removed him as recommended but the former judge challenged the decision.
Yesterday, the Supreme Court in a decision read by Justice Isaac Lenaola said “upon consideration, we have come to the decision that the findings and recommendations of the Tribunal to the President that Mutava be removed must be upheld”
The court said the tribunal was constitutionally bound to investigate the complaints against the judge and present its recommendation to the President.
They also agreed with the tribunal that its jurisdiction was not affected by the subsequent withdrawal of some individual complaints.
In dismissing his appeal, the bench held that Mutava’s conduct amounted to gross misconduct.
The Judge was suspended in May 2016 over the manner in which he handled the multi-billion shilling Goldenberg scandal, and acquitted its chief architect Kamlesh Pattni. He faced 11 counts of impropriety, eight of which were dismissed by the sub-committee headed by Supreme Court judge Smokin Wanjala.
Through his lawyer Philip Nyachoti, Mutava defended himself against the claims saying he followed the procedure and found no criminal culpability on the part of Kamlesh Pattni.
Mutava had sought a declaration that the findings of the tribunal to the effect that his conduct amounted to gross misconduct were not supported by any evidence on record and were therefore unfounded.
But the bench after reviewing and analysing all three allegations that led to a finding of gross misconduct on Mutava affirmed the tribunal's finding.
The judge in his appeal had contended that the appointment of two additional members of the tribunal after the expiry of 14 days of the receipt of the petition from the JSC was in violation of the Constitution.
He claimed that the appointment was to be done within 14 days but the President took up to 30 days to appoint the full tribunal.
This, he said, amounted to the tribunal and its entire proceedings and recommendation being unconstitutional.
But the Supreme Court dismissed the prayer sought saying they cannot assume jurisdiction to determine the constitutionality of the tribunal since the same was conclusively determined by the Appellate Court.
Mutava was appointed a judge of the High court on 23 August 2011. Between March 2012 and March 2013, several complaints were lodged with the Judicial Service Commission against him.
On December 1, 2012, the JSC constituted a committee to investigate those allegations. After an inquiry, the JSC sent a petition to the President recommending his suspension and the appointment of a tribunal to investigate the allegations of gross misconduct and misbehavior leveled against him.
The allegations were that Mutava irregularly, inappropriately and knowingly in collusion with other parties caused a case involving Pattni to be allocated to himself without the knowledge and consent of the duty judge and the presiding judge of the Judicial Review Division.
He allegedly interfered with the judgment of another judge, Justice Leonard Njagi, who swore an affidavit to support the allegations.