NAIROBI, Kenya, Nov 17 – Suspended Judge Joseph Mutava on Thursday told the Supreme Court, through lawyer Philip Nyachoti, that he would be applying for the recusal of two of its judges and maybe a third, in the hearing of his appeal against removal from office.
Nyachoti told Supreme Court Deputy Registrar Lucy Njora, before whom he appeared for directions on the appeal, that Mutava would, “naturally,” apply for the recusal of Chief Justice David Maraga, Superior Court judge Smokin Wanjala and maybe Isaac Lenaola – the latest addition to the bench.
He said Mutava would be applying for Maraga’s recusal on grounds that he chaired the tribunal whose findings for removal they are now challenging in the court of last resort.
Wanjala, he submitted, was also conflicted given he chaired the Judicial Service Commission inquest that recommended to the President the formation of a tribunal to try Mutava after establishing he had a case to answer.
Calling for Lenaola’s recusal, Nyachoti admitted, could present a problem given the bench requires a minimum of five judges to be properly constituted.
But Lenaola, he said, had previously – in the High Court – recused himself from hearing the matter given he served on the JSC when it made the recommendation for the formation of a tribunal to further probe the complaints lodged against Mutava.
In the meantime, Mutava has successfully applied for time to allow a new lead counsel get up to speed on the matter with Njora setting a mention date for March 1.
The office of the Attorney General has on the other hand filed grounds of opposition; it argues that Mutava’s appeal has no legs to stand.
The Attorney General submits that Mutava cannot now claim to challenge the jurisdiction of the tribunal after subjecting himself to and participating in its process after losing out in an earlier challenge to the Court of Appeal.
“The constitutionality of the respondent Tribunal was determined with finality by the Court of Appeal because the appellant wilfully abandoned his appeal to the Supreme Court,” the submissions read.
The crux of Mutava’s appeal is that the Tribunal had no business sitting in the first place all three complaints against him were withdrawn.
The Attorney General’s rebuttal is that Mutava by his own admission, violated the Judicial Code of Conduct by “inquiring into the progress of an ongoing matter being handled by another judge.”
He goes on to make the case that Mutava, going by the record of the Tribunal’s proceedings, received a fair hearing.