JSC begins probe of 20 judges accused of judicial misconduct

As many as 20 judges face suspension after the Judicial Service Commission (JSC) opened investigations into allegations of misconduct made against them, the Sunday Nation has learnt.

More judges are likely to join the list, according to sources at the Judiciary who confirmed that the JSC secretariat was busy analysing numerous complaints to determine if they are credible enough to warrant a full hearing before a disciplinary sub-committee.

In the event the JSC finds any of the judges guilty of misconduct, it will initiate a process of removing them from the Bench by recommending their suspension to the President and creation of a tribunal to investigate their conduct.

Six judges faced the commission’s disciplinary sub-committees on Tuesday and Wednesday, while the JSC secretariat conducted preliminary assessment of complaints against the remaining 14 judges on Thursday and Friday.

The judges questioned by the commission on Tuesday are Justice Alfred Mabeya of the Civil Division, Justice Francis Gikonyo of the Commercial Division and Justice Njagi Marete of the Employment and Labour Relations Court.

FACE INVESTIGATION

On Wednesday, the JSC grilled Justice Luka Kimaru of the Criminal Division, Justice Nzioki wa Makau of the Employment and Labour Relations Court, and Busia-based Justice Stephen Kibunja. Our sources, who spoke in confidence, indicated that the complaints remain allegations until proved.

Justice Mabeya was accused by Pastor Patrick Wafula Kaburu of mishandling a criminal case involving a mentally challenged person in Bungoma. Pastor Kaburu alleged the judge was influenced by a court official and received huge bribes to dismiss the case.
Justice Mabeya denied the six allegations raised against him and accused the complainant of lying to the commission because he had lost a case.

“The allegations made by the complainant are criminal in nature and the commission should request the Director of Public Prosecution to investigate and ask Mr Kaburu to surrender his evidence and all those mentioned called to record statements,” said Justice Mabeya.

He denied colluding with a court official in Bungoma to receive bribes adding that he was ready to be suspended if it is proved that he had engaged in misconduct.

The JSC secretariat remarks on the allegations were that apart from the issues of impropriety, other matters raised by Mr Kaburu touched on the merit of the judgment and against which he still had a chance to appeal.

The complaint against Justice Gikonyo was about the manner in which he invalidated the election of Mr Moses Wetang’ula as Bungoma Senator following a petition by Mr Musikari Kombo.

The complainant, lawyer Simiyu Makokha, alleged that Justice Gikonyo irregularly issued a certificate to Senate Speaker Ekwee Ethuro to declare Mr Wetang’ula’s seat vacant and that the judge should be investigated over how he concluded that the DPP should investigate Mr Wetang’ula for voter bribery.

“After he delivered his judgment on September 30, 2013, we perused the file and found there was no certificate to the Speaker or a report to the DPP requesting investigations. We only learnt through the media that he had made those orders eight days later,” Mr Makhokha said.

In his defence, Justice Gikonyo denied backdating the notices, saying he hurriedly left Bungoma due to the heightened political tension after his judgement and in the process mistakenly packed them in his laptop as he was being sneaked out of court.

The judge blamed Cord for his woes, saying that the opposition coalition started threatening to have a tribunal formed to investigate his conduct over the Wetang’ula case.

“The complainant threatened me after I delivered the judgement, a matter I reported to police. Cord issued the same threats during their press briefing and even before delivery of the judgement; I was called names by the politicians,” said Justice Gikonyo.

Justice Kimaru is accused by lawyer Celyne Odembo over how he handled a succession case while serving at the Family Division.

Ms Odembo claims the judge handled the matter in an “extremely temperamental and emotional” way, charged at her, accused her of lying and intimidated her in front of her children and the public.

According to Ms Odembo, the judge ordered that she be evicted from the house she was living in without giving her time to look for alternative accommodation and denied her a chance to appeal the decision.

BAD TEMPER

In response, Justice Kimaru denied being biased or hostile towards Ms Odembo, saying instead that it was actually the lawyer who misconducted herself by shouting at him during the proceedings.

The JSC secretariat noted that similar complaints touching on Judge Kimaru’s temperament and language had previously been raised and that the commission should consider a peer review with him on the issues.

Mr Munayi Isaac Opondo filed a complaint against Justice Makau alleging he colluded with Rift Valley Railways to set aside compensation he had been awarded for wrongful termination of his contract.

According to Mr Opondo, the judge aided and abetted disrespect for the law, owing to a “special bond” that existed between him and the railways company.

Justice Makau, however, denied the allegations, arguing that the warrants to attach the company’s property obtained by Mr Opondo were fraudulent.

“The decree differed materially from warrants issued to the complainant. I handled the matter according to material before me and without bias, affection or ill will. It is also not true that I personally knew the advocate for the company or I had a special bond with them,” said the judge.

Two complainants accused Justice Marete of irregularly keeping files after delivering judgments. Mr George Khaaba claimed the judge kept his file cabinet locked and refused to act on a letter requesting certified copies of proceedings which prevented him from appealing.

But Justice Marete explained the court vacation had begun at the time he delivered the judgment and that his secretary had gone on leave which made it impossible for him correct the mistakes and return the file to the registry.

HIS ACCUSER

The second claim against the judge is by Mr Reginald Nyagah, a former employee of the French Embassy who claimed that Justice Marete gave a contradictory judgement after which he kept the file in his office for a month and denied him a chance to appeal.

“His oral judgement seemed to have allowed our case whereas the written judgment dismissed it. The printed judgement was clearly biased and a compromised version considering it did not give the reasons or the basis of what formed termination of my employment,” said Mr Nyagah.

Justice Marete denied the accusation, saying the verbal decision was only meant for the advocates in court and in any event, the written judgment took precedence.

The last judge questioned last week was Justice Stephen Kibunja. His accuser, Mr Sylvester Okumu, claimed that the judge reopened a land dispute which had already been concluded and was influenced to give a favourable decision by his opponents.

Justice Kibunja denied being influenced by anybody either directly or indirectly and that his decision to recall the file was because it was related to another matter he was handling.

The move by JSC to investigate judges accused of misconduct is a clear indication of a more robust stand on discipline in the Judiciary.

Unlike the Judges and Magistrates Vetting Board which has sent over 12 judges and magistrates home for various offences, JSC has since inception only recommended the suspension of Justice Joseph Mutava, who has challenged the decision in court.