NAIROBI, Kenya, Sep 21 – The tribunal formed to probe allegations of misconduct against judge Joseph Mutava on Wednesday handed over its report to President Uhuru Kenyatta — recommending that he be removed from office.
At a public unveiling of the report later in the day on Wednesday, tribunal Chairperson and Appellate judge David Maraga explained that the recommendation was based on a finding that three of the six allegations made against him had been proven.
Two of the three proven allegations were in regard to his handling of a case involving controversial businessman Kamlesh Pattni; a matter brought up for judicial review in 2012 that saw him issue orders prohibiting the continued prosecution of the businessman over the infamous Goldenberg Affair.
The reasons he gave for the order was that Pattni’s right to trial within a reasonable time had been violated.
“This is an application for leave to commence judicial review proceedings. It is stated that the urgency of the matter is that the magistrate who has been handling the criminal case CMCC No. 518 of 2006 has been elevated to the position of Judge and the prosecutor who was prosecuting the case deployed to the Commission of Inquiry dealing with the Saitoti Helicopter crash. As such, the applicant is aggrieved that the criminal proceedings which he claims commenced way back 22 years ago are going to be prolonged further.”
The contention was however, that Mutava had no business hearing the matter in the first place as he was not stationed in the Judicial Review Division where it should have properly been heard.
His defence was that the matter came up for hearing during the judges’ August vacation period when he was holding fort for fellow High Court judge Weldon Korir.
Korir however, told the tribunal that while he did ask Mutava to fill in for him on that fateful Friday when the matter came up before the court, it was not as the duty judge in the JR division.
Mutava was also hard-pressed to explain why he did not hand over the matter to the JR division even after the vacation period was over and he returned to the Commercial Division but insisted on hearing it to conclusion.
READ: Mutava woes the result of Kanyotu property dispute – Pattni lawyer
“The judge proceeded to write a judgement in respect of Miscellaneous (Judicial Review) Application No 305, Republic v. Attorney General and 3 others, ex-parte Kamlesh Mansukhlal Damji Pattni at a time when the JSC was inquiring into allegations of misconduct against him with regard to the same matter,” the tribunal consisting of Maraga, Justice Maureen Odero, Justice David Majanja, Omesh Kapila, Patricia Kamiri Mbote (Prof.), Lawrence Murugu Mute and Jedidah Pilale Ntoyai also faulted.
The third and final allegation they found had been proven was that Mutava had indeed sought to compromise Leonard Njagi, before the judges and magistrates vetting board found him unfit to be a judge, in another matter involving one Rose Mulwa who had claimed Mutava asked her for a Sh2.5 million bribe on behalf of Njagi before later recanting.
Njagi showed the tribunal a text message, he testified, he received from Mutava instructing him to rule in favour of Mulwa.
“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.’” he testified.
Article 168(8) of the Constitution provides a mechanism for Appeal, a provision which Mutava through lawyer Philip Nyachoti told Capital FM News he intends to take full advantage of.
“A judge who is aggrieved by a decision of the tribunal under this Article may appeal against the decision to the Supreme Court, within ten days after the tribunal makes its recommendations,” the Article states.