Sacked judge accuses tribunal of unfairness, wants to be reinstated

A judge who was found unfit to serve in the Judiciary has requested the Supreme Court to make a finding that the allegations against him did not warrant him being sacked.

Former High Court judge Joseph Mutava who was removed from office has also claimed the tribunal which was chaired by Chief Justice David Maraga, had expressed open bias against him during the hearing of the case in 2016 when his wife, Kibwezi East MP Jessica Mbalu was compelled to testify.

On Wednesday, his lawyer Philip Nyachoti told a five-judge bench of the Supreme Court that the tribunal made an error when they reached a finding that the only option they had was his removal from office. The judge was sacked over contested handling of businessman Kamlesh Pattni’s file.

UNLAWFUL

“The tribunal had the option of recommending that he should be suspended for a given period, then be reinstated and not necessarily removal from office. We ask that the judge be reinstated,” lawyer Nyachoti said.

He told Deputy Chief Justice Philomena Mwilu, and justices Mohamed Ibrahim, Jackton Ojwang', Isaac Lenaola, and Njoki Ndung'u, that the complaints which had been brought against the judge had been withdrawn, and that the tribunal was unfair to him when it relied on the same to recommend his sacking.

Mr Nyachoti also urged the court to find that the verdict by the tribunal was unlawful.

DISOWNED

The tribunal engaged the services of a Director of Criminal Investigations (DCI) which did not supply him with all the witness statements against him within reasonable time, and summoned his wife through the Clerk of the National Assembly to testify.

State counsel Emanuel Bitta, however, said that the judge’s wife was only called because one of the witnesses had mentioned her name, and Mrs Mbalu was being given an opportunity to respond.

He said the DCI was called in to shed light on investigations regarding ownership of a cell phone line which had been disowned by the judge, adding that there was nothing wrong with calling experts to assist the tribunal reach a just conclusion.

DISPUTE

He said the tribunal acted in relation to complaints before the Judicial Service Commission, adding that Justice Mutava has not indicated that he had requested for more time but was denied. He said the alleged prejudice on the judge had not been raised before the tribunal and cannot be raised before the Supreme Court.

“The tribunal was conscious of Justice Mutava’s rights and the evidence before it was supported by the court records which were the subject of the dispute,” said lawyer Bitta.

He supported the judge’s removal from office, saying the allegations against him had cast doubt on public confidence in the Judiciary.

Justice Mutava was removed from office following the tribunal’s recommendation to President Uhuru Kenyatta in 2016.

A ruling will be delivered on notice.