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Joseph Mutava loses bid to remain judge

Tuesday March 12 2019

Former High Court judge Joseph Mutava at the

Former High Court judge Joseph Mutava at the Supreme Court on Tuesday, March 12, 2019. The top court rejected his bid for reinstatement. PHOTO | DENNIS ONSONGO| NATION MEDIA GROUP 

ABIUD OCHIENG
By ABIUD OCHIENG
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Former High Court judge Joseph Mutava has lost his bid for reinstatement after the Supreme Court upheld a tribunal ruling which found him unfit to serve as a judicial officer.

The Supreme Court upheld the tribunal's ruling on Tuesday in judgment delivered by Deputy Chief Justice Philomena Mwilu and Justices Mohamed Ibrahim, Jackton Ojwang', Isaac Lenaola, and Njoki Ndung'u, who heard his appeal.

The tribunal found him guilty of gross misconduct and recommended to the President to have him removed from the Judiciary.

PATTNI CASE

He had requested the Supreme Court to make a finding that the allegations against him did not amount to the need for his removal.

He had told the five-judge bench that 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.

His lawyer Philip Nyachoti had told the court that the tribunal made an error when they reached a finding that the only option they had was for his removal from office.

The judge was sacked over his contested handling of businessman Kamlesh Pattni’s file.

“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,” said Mr Nyachoti.

The lawyer also told the bench that all the complaints which had been brought against the judge had been withdrawn and that the tribunal was unfair to him when it relied on the same to recommend his removal.

Mr Nyachoti also urged the court to find that the entire verdict by the tribunal was unlawful because the way the case against the judge was conducted before the tribunal had not fully complied with the provisions of the Judicial Service Act on removal of a judge.

APPEAL

Lawyer claims the tribunal engaged the services of the director of criminal investigations and 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.

But the state counsel Mr Emanuel Bitta 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 Directorate of Criminal Investigations was called in to shed light on investigations regarding ownership of a mobile 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.

He said the tribunal acted in relation to complaints before the Judicial Service Commission, adding that Justice Mutava had 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 Mr 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.