Lawyers defend Judge Sifuna in fight with assets recovery boss

LSK says she should complain to the Judicial Service Commission over ruling.

In Summary
  • Theuri said the judge was right to call out the practice of state agencies rushing to court.
  • Mate on November 17 wrote to Chief Justice Martha Koome asking that the judge be investigated.
Milimani law courts
Milimani law courts
Image: FILE

Lawyers have dismissed Assets Recovery Agency boss Alice Mate's attack on High Court judge Nixon Sifuna over a judgement against the entity.

Mate on November 17 wrote to Chief Justice Martha Koome asking that the judge be investigated over a decision in which he used strong statements against her and the agency.

She says the wording of the judgement reflected negatively about her and the agency's integrity and this could jeopardise their work.

Now, Law Society of Kenya president Eric Theuri and his deputy Faith Odhiambo have swung to the defense of the judge, saying that Mate's letter is addressed to the wrong person, and that she should have complained to the Judicial Service Commission.

“I believe it was intended for the media and to try and salvage the image of the ARA and not to formally initiate a complaint against the judge. Otherwise, they would have filed the complaint as required by the law and present additional evidence to show how the Judge misconducted himself,” Theuri said.

Theuri said the judge was right to call out the practice of state agencies rushing to court with matters that they have not taken their time to exhaustively examine if there is substance worth pursuing.

In the case against Peter Olwafemi Olaiwon, ARA was after some assets suspected to be questionable.

But before the case was taken to trial, the agency sought leave to withdraw it.

Judge Sifuna demanded an explanation for the move and asked that Mate signs an affidavit in support.

When he eventually gave his decision over the application to withdraw, the judge made remarks that left no doubt about his skepticism over the agency’s dealings.

“…there is the need to put in place safeguards and safety valves to ensure [that] holes are plugged and the funds, assets and properties ordered forfeited to government [are] insulated and kept out of reach of further corruption, misappropriation or further money laundering by agents in government agencies..... What for instance happens to the interest earned when these monies are put on interest-earning suspense accounts in the name of Asset Recovery Agency as is the case now?" Sifuna said.

"How is it appropriated? Do this accrued interest and forfeited monies, assets and property feature in the annual audit reports of the auditor or parliament’s oversight reports? Maybe not.”

The judge ordered that public money used to mount the case be recovered from Mate and lead investigator Issac Nakitare.

But Mate took issue with the decision, complaining that the judge’s stance injured their personal and the institution’s integrity and he should be investigated.

“Such false and disparaging remarks not only amount to character assassination against myself and the investigating officer but also tarnish the reputation our agency as well as serve to undermine the faith of the general public in the agency,” she wrote.

“I firmly believe that the judge displayed both bias and unfair judgement in making these derogatory comments about me and the agency. His accusatory remarks were made without proper regard for the facts of the case or principles of natural justice. By doing so, Justice (Prof) Nixon Sifuna has not only tarnished my professional reputation but has also cast aspersion on the reputation of the Asset Recovery Agency as a whole,” she said.

LSK chairman Theuri said Mate was stung by the judge's criticism.

“Holders of public office are not immune from review of their actions. They cannot initiate drastic action such as asset forfeiture and then later claim they took the action before fully examining the facts. Those actions affect lives, can close down businesses and therefore must be done in the clearest of cases. The condemnation by the judge though maybe couched in strong language is therefore warranted,” he said.

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