Suspended judge in fight to come back

A suspended judge could find his way back to the Judiciary due to an omission by President Kenyatta when he appointed a tribunal to investigate the judicial officer.

Initially, the President appointed five members into the tribunal to investigate the conduct of Justice Joseph Mutava and later appointed two other members.

The judge, who is suspended, argues that the initial five-member tribunal did not meet constitutional requirements and that the subsequent appointment of two more members was done outside the prescribed time limit.

Through lawyer Philip Nyachoti, the judge yesterday told the High Court that the appointment was to be done within 14 days but the President took up to 30 days to appoint the full tribunal.

“The constitution is specific that a tribunal to investigate a judge must consist seven members appointed within 14 days after recommendation from the Judicial Service Commission. What the President did was illegal, unconstitutional and cannot proceed to investigate the judge,” said Mr Nyachoti.

The President had no authority in extending the time to appoint additional members and allowing the tribunal to proceed would be “a fraud” on the rule of law, the lawyer argued.

The JSC, through lawyer Paul Muite, submitted that the provision only limits suspension of a judge and not appointment of a tribunal.

He dismissed the judge’s contention that he was not given a chance to question the commission’s witnesses.

“The JSC is not a conveyor belt,” he argued, “It objectively evaluated the complaints before making a decision of whether the evidence were sufficient to warrant petitioning the President to form a tribunal.”

The judge would have a chance to question witnesses when he appears before the tribunal, Mr Muite submitted.

Justices Mumbi Ngugi, George Odunga and Pauline Nyamweya will deliver a ruling on January 31.