Judges who face tribunal often get sacked

The Judicial Service Commission on Wednesday set in motion a process to initiate the sacking of High Court judge Said Juma Chitembwe.

The JSC will ask President Uhuru Kenyatta to form a tribunal to investigate the judge over alleged misconduct.

Once formed, Justice Chitembwe will set himself on a journey that has claimed the careers of several judicial officers before him. 

But all is not gloomy. The judge has an equal opportunity of coming out of the tribunal probe unscathed as has happened to others before him.

Among those whose careers have ended at the recommendation of such a tribunal include former Deputy Chief Justice Nancy Baraza and High Court judges Joseph Mutava and Martin Muya.

Those who survived include former Supreme Court judge Jackton Ojwang.

Chitembwe will become the eighth judge to face a tribunal over allegations of misconduct since the 2010 Constitution was adopted.

He is facing allegations of impropriety and misconduct which the JSC said it are enough grounds for his removal from office.

We look at what befell those before him.

Nancy Baraza

Nancy Makhoha Baraza was the Deputy Chief Justice when a tribunal was formed to investigate her conduct.

This was after a female guard claimed the judge had pinched her nose and pulled out a gun after refusing to be frisked at Village Market shopping centre in Nairobi's Gigiri area.

The tribunal that was chaired by former Tanzanian Chief Justice Augustino Ramadhani said it believed security guard Rebecca Kerubo’s claim that Baraza pinched her nose and then later drew a gun on her at the mall on December 31, 2011.

There had been heightened threats of terror attacks and the government had made it mandatory that guests at malls and supermarkets be frisked.

Baraza did not dispute having an altercation with the guard but claimed the guard  shouted at her when she passed the security check without having her handbag searched.

She denied pinching Kerubo’s nose, saying she only put her hand over the mouth of the guard to calm her down and stop shouting. 

“We find Kerubo to be credible from the way she confidently and steadfastly gave her evidence and especially in cross examination," Ramadhani said.

"In fact, she has been consistent in her statements. On the other hand, we were not thus impressed by the evidence given by the DCJ. There were discrepancies in her evidence.”

It is at that point that Baraza dropped her appeal to the Supreme Court and resigned after only one year as a judge.

She said then Chief Justice Willy Mutunga who was also the Supreme Court president and chairman of the JSC had endorsed the tribunal's recommendations and so she would not get a fair hearing from a bench where Mutunga was presiding.

Philip Tunoi

The tribunal that investigated justice Tunoi over bribery allegations was chaired by Sharad Rao.

Petitioner Geoffrey Kiplagat, a former broadcaster, had claimed Tunoi was given a Sh200 million bribe by agents of Nairobi Governor Evans Kidero to influence the outcome of an election petition filed against him by Ferdinand Waititu.

The tribunal ended its sittings after the matter was overtaken by events following Tunoi's retirement after he attained the age of 70.

Justice Ojwang’, on the other hand, was accused of gross misconduct, impropriety, conflict of interest and breach of judicial code of conduct when he faced the tribunal.

His investigation was initiated following a request by the JSC in March 2019 after a petition by Nelson Oduor and eight others.

During the probe, the Justice Alnasir Visram-led tribunal sieved through evidence presented by 25 witnesses and considered the applicable legal principles before arriving at the conclusion that the judge was innocent.

“After adducing and analysing all the allegations made against the Honourable Justice, the unanimous verdict is that...Ojwang is innocent of all the allegations made against him and that he should resume his duties immediately,” Visram said.

He further said it was the unanimous recommendation of the tribunal that Ojwang's suspension be lifted.

In its recommending for Ojwang's probe, JSC said, despite being conflicted and being closely associated with Migori Governor Okoth Obado, the judge sat in a bench that heard a case involving the governor.

But Ojwang defended himself, saying he was not part of the bench that determined the main grievance which related to interests in the Sony Sugar-belt area.

The second petition was about the grading of a road in Kakrao within Migori county after it emerged that it was a public road and was not done in favour of Justice Ojwang.

The complaint said the judge authored a judgment regarding the Sony Sugar belt and, in return, was rewarded by the governor who allegedly refurbished the road to the judge’s home outside Migori town.

Then there was High Court judge Joseph Mutava who was suspended after several allegations of misconduct were levelled against him in 2012 and 2013.

The allegations were said caused a file to be retrieved from the safe custody of the High Court and taken to him at a new work station in Kericho.

There were also allegations that he solicited a Sh2.5 million bribe on behalf of another judge.

Another claim was that he was seen in the company of one of the parties in a case before him.

The tribunal that investigated Mutava was chaired by David Maraga, then a judge of the Court of Appeal before he was appointed Chief Justice.

After hearing the evidence of 29 witnesses and submissions by Mutava’s lawyer, the Maraga tribunal found that Mutava had, in collusion with others, allocated himself a file without the knowledge of the duty judge.

He had then proceeded to write a judgment in a case where he was being investigated, and sought to influence a ruling.

Mutava was subsequently fired by President Uhuru Kenyatta after the Supreme Court rejected his appeal in 2019.

Martin Muya

The petition against Muya arose in 2019 with the matter revolving around a lost court file, a Sh76 million loan dispute between NIC Bank and a businessman, and 14 lorries that had been detained as security for the loan.

The judge handled the dispute between the bank and Alfred Mutai and Kipsigis Stores over the Sh76 million debt at Bomet High Court.

The bank accused him of bias in his decision that stopped them from auctioning the traders’ 14 vehicles to recover the loan and withholding a ruling for five months, which made it impossible for the bank to appeal.

A tribunal chaired by Visram ruled Muya was guilty of misconduct and recommended he be sacked.

(edited by Amol Awuor)