, NAIROBI, Kenya, Jun 22 – The tribunal had waited a long time to hear from this witness.
He was, they’d been informed time and again, busy representing a Supreme Court judge “on the other side of town.”
Advocate Fred Ngatia did however find time on Wednesday, to eventually make his appearance at KICC, as the very last witness Lead Assisting Counsel Nazima Malik would call in her effort to make a case for suspended Judge Joseph Mutava’s dismissal.
His testimony bore similarity to that previously heard by the tribunal in that it included hearsay of a secret meeting between the judge and a party to a case in Karen.
The gist of which was that Mutava, after, “being seen,” with one of the Directors of East African Portland Cement, reinstated the Board of Directors – who had been suspended by the then Minister of Industrialisation and now Kilifi Governor Amason Kingi in December of 2011 – while the matter was pending before the Judicial Review division of the High Court.
He did so after the board members sought relief from Mutava through an application, “mirroring,” the one they already had pending before the Judicial Review division.
In that case, the judge had declined to reinstate the board before the matter was heard inter-partes but Mutava went ahead to grant the relief ex-parte in what Ngatia described as suspicious circumstances.
“I found it unlikely that the Judge Mutava would have not been aware of the judicial review proceedings as it was like a soap opera; all over the media. I don’t mind a lawyer who files a frivolous lawsuit but I do mind a judge who advances an illegality and immorality,” Ngatia testified before the tribunal charged with determining Mutava’s future in the Judiciary.
The head of the Judicial Review division Mohamed Warsame, Ngatia testified, later remedied the irregularity when he ruled that: “As this matter was pending, the Company filed HCC No.5 of 2012 in the Commercial Division of the High Court. The defendant in that case are the respondents herein. As was rightly submitted by Mr Ngatia, the prayers in the Judicial review proceedings and in private law case are the same and/or identical. In my view that conduct amounts to an abuse of juridical process. The person who instigated that suit were not entitled to do so. I think, it was filed in order to create confusion and contradiction in the administration of justice.”
Ngatia also took his time before the tribunal, to demand for an apology from Justice Mutava who had in turn accused him – before the Judicial Service Commission – of storming his office and seeking to force his hand in the name of his client, the Minister.
“A friend of the judge did plead with the relevant people in government and said why are we still pursuing this matter, and with the passage of time, one says let bygones be bygones, so I withdrew the complaint. Much later, the untrue statements made by the judge before the JSC were brought to my attention and we had a change of heart.”
Malik having rested her case, Mutava will now mount his defence from July 4.