, NAIROBI, Kenya, May 16 – Chief Justice Willy Mutunga has been summoned by the tribunal investigating complaints lodged against suspended High Court judge Joseph Mutava.
The David Maraga chaired tribunal on Monday acceded to Mutava’s application to have Mutunga summoned as a witness after finding that a sufficient basis had been laid.
“We cannot stop him (Mutava) from calling the Chief Justice to testify in this matter. Paragraph 14(1) of the Second Schedule in the Judicial Service Act entitles a judge whose conduct is the subject of investigation to call evidence to rebut allegations made against him,” Maraga said.
The fact that the Chief Justice had been brought into the matter by Judiciary Ombudsman Ken Bidali, the tribunal adjudged, provided sufficient basis for his appearance before them.
“Having considered the application, we disagree with the suggestion by the Lead Assisting Counsel (Nazima Malik) that Mutava has not laid a proper basis for summoning the Chief Justice. From the evidence of Hon. Bidali, we find that he has done that,” Maraga communicated.
Bidali last week told the tribunal that it was the Chief Justice who recommended that Mutava be investigated by the Judicial Service Commission with the aim of determining if it was necessary to recommend his suspension and further investigation by a tribunal, to the President.
He did so, Bidali testified, after he interviewed retired Justice Leonard Njagi who has accused Mutava of sending him an inappropriate text message with instructions on how to determine a property dispute.
“This was September 6, 2012 and the message was sent to me at 9.27am and it reads ‘HCC,’ that is High Court Civil Case, ‘705 of 2009 Sehit inv (investments) vs Josephine Onyango. I am for plf (plaintiff), Sehit. Thanks.’” Njagi testified before the tribunal on April 18.
What Mutava seeks to know is why the Chief Justice did not, as he had done with Njagi, interview him before recommending that a special committee of the Judicial Service Commission be set up to investigate him and determine if indeed Mutava had a case to answer.
He also seeks to know why similar recommendations were not made where Njagi was concerned despite the finding that he had a legal researcher write his rulings; one of which was leaked to one of the parties in the aforementioned dispute.
The Chief Justice, the tribunal directed, will take the stand after Malik rests her case against Mutava.