• Judge's lawyer further argued that by granting the orders being sought then the court will be stopping JSC from carrying out its mandate as stipulated in law.
• In a letter dated November 12, 2021 the JSC summoned Appeal Court judge Sankale ole Kantai to appear before it in relation to two petitions for his removal.
Image: COURTESY
Court of Appeal judge Sankale Ole Kantai on Wednesday lost a bid to stop the Judicial Service Commission from summoning him and deliberating on two petitions seeking his removal.
One petition before the JSC was filed by activist Okiya Omtatah and the other by Gabriel Van Straten, sister of slain Dutch businessman Tob Cohen.
They want the commission to investigate judge Sankale for alleged gross misconduct and alleged involvement in Cohen's murder.
The judge moved to court in December, seeking to bar his appearance before the commission pending determination of another matter he filed in court on the same issue. He sued Police IG Hillary Mutyambai and DCI boss George Kinoti.
in November last year, the JSC wrote to him, asking him to appear before the panel to answer allegations made by the petitioners against him.
On November 12, 2021, the JSC summoned Sankale to appear before it in relation to the two petitions.
However, on December 1, 2021, the judge wrote to JSC, requesting it not to consider his removal from office based on mere allegations that he was involved in the Cohen murder. He said it should first hear his case suing the the IG and DCI.
On Wednesday, judge Sankale through lawyer Peter Wanyama had urged the court to suspend the hearing, even if only for 10 days, arguing it would be prejudicial to him.
Wanyama told Justice Antony Mrima that if the process is allowed to go on, then it is prejudicial because there is a pending case before court on the same matters yet to be determined.
In response, lawyer Charles Kanjama for the JSC strongly opposed the application, arguing the judge will suffer no prejudice if the orders are not granted at this stage.
He further argued that by granting the orders being sought by Sankale, the the court would be stopping the JSC from carrying out its mandate as stipulated in law.
"We urge the court to decline the grant of the orders and allow the request to have Cohen's family be enjoined as interested party in the matter," JSC said.
Judge Mrima did not grant any orders sought and said he will deliver a ruling on January 24 on whether he will issue orders or not.
In his petition, the judge argues the JSC should not take any action against him because the fundamental question in the matter is still in dispute and pending in court.
Lawyer Wanyama asked, "An order for prohibition be issued restraining the Judicial Service Commission from considering petitions lodged by Okiya Omtatah and Cohen's sister Gabriel Hannah Van Straten, for removal of the Petitioner from office as a Court of Appeal judge, arising from the DCI murder investigations of Cohen," Wanyama said.
Gabriel,through her lawyers Danstan Omari and Shadrack Wambui, have asked the court enjoin her in the matter as an interested party because the case is related to the death of her brother.
Judge Mrima said he will issue directions on their application for joinder on the same day he will give his ruling.
On September 13, 2019, Tob Cohen's body was found in a water tank at his Nairobi home.
His widow Sarah Wairimu and Peter Karanja were charged with murder and denied the charges.
She is battling the Cohen's family over his Sh400 million estate.
The judge too was arrested but the DPP ordered him released wthout charge.
(Edited by V. Graham)