By PETER LEFTIE email@example.com
Posted Monday, April 22 2013 at 23:30
Posted Monday, April 22 2013 at 23:30
The judge who made a ruling shielding Goldenberg suspect Kamlesh Pattni from further investigations and prosecution has been the subject of complaints regarding his handing of other cases involving Mr Pattni.
The Law Society of Kenya has previously filed a complaint with the Judicial Service Commission over Mr Justice Joseph Mutava’s handling of cases involving Mr Pattni and his companies.
“The committee has not finalised the investigations into the complaints raised by LSK and its members,” said the Judicial Service Commission’s registrar, Ms Fridah Mokaya, when asked about investigations on Justice Joseph Mutava’s handling of cases involving Mr Pattni.
LSK on Monday said it would appeal against the High Court ruling that acquitted Pattni of the Goldenberg criminal charges as the judge who delivered the controversial judgment remained defiant in the face of public outrage.
LSK chairman Eric Mutua asked the Judicial Service Commission to speed up investigations into nine complaints raised against Mr Justice Mutava.
In a statement, Mr Mutua said that most of the complaints against the judge concerned his handling of cases involving Mr Pattni and his companies.
“We strongly believe in the rule of law and insist that justice should not only be done but seen to be done on the multi-billion shilling Goldenberg criminal charges,” Mr Mutua said.
But Mr Justice Mutava appeared to have anticipated public outrage.
“It will be foolhardy not to observe that the verdict of this court in the present application is bound to elicit din, clamour and hostility in view of the predispositions by the media and public opinion with regard to the notoriety of the applicant (Pattni),” he said, declaring that the work of a judge is not for the faint-hearted. “I am, therefore, comfortable and well prepared for any reaction.”
Ms Mokaya defended the JSC against accusations by one of the lawyers who raised the complaints that it had facilitated the delivery of the judgment by giving the judge access to the files containing cases facing Mr Pattni.
“It is normal for the committee to ask for the files relating to a case in order to facilitate its investigations, but once it has perused them, the files will be returned to the courts. It cannot keep them forever,” Ms Mokaya said.
She, however, denied knowledge that the file containing the judgment had disappeared from the High Court registry and surfaced after 18 days, well past the 14-day window for filing appeals.
“On the alleged disappearance of the file, only the High Court division responsible can answer the question,” Ms Mokaya said.
LSK had said that a case of the magnitude of the multi-billion shilling Goldenberg scandal could not be dismissed on grounds that it has taken too long in court.
“The Goldenberg scandal nearly brought the country to its knees on the economic front and it cannot be dismissed on flimsy grounds,” Mr Mutua said. “We demand immediate action on the complaints we lodged against Justice Mutava before the JSC”.
Mr Justice Mutava made the judgment dated March 20 absolving Mr Pattni and his associated firms from the Goldenberg scandal.
Mr Pattni was charged with conspiracy to defraud the government of Sh5.8 billion, which was just one of the multiple cases related to the scandal that is believed to have cost taxpayers more than Sh100 billion.
The judgment has kicked off a storm with LSK questioning the circumstances under which the judge was allowed to continue hearing the case and deliver the judgment when he is being investigated by the JSC over his handling of cases facing Mr Pattni.
“This is a big drawback in the fight against corruption. We have already filed an appeal because this judgment has confirmed the complaint we raised about Judge Mutava with the Judicial Service Commission,” said Mr Nelson Havi, who represented the International Centre for Policy and Conflict (ICPC), which filed a petition seeking to have the judge removed from office.
The LSK also wondered why the JSC was taking long to conclude its investigations into the judge’s handling of the Pattni cases.
“A committee was formed and the complainants even made submissions before it. Midstream, we learnt that the chairman, Justice Isaac Lenaola, had resigned and Smokin Wanjala appointed to replace him. Months down the line, we are yet to get the outcome of the investigation,” LSK secretary Apollo Mboya said.
The Director of Public Prosecutions, Mr Keriako Tobiko, has indicated that he will lodge an appeal against the judgment.
In the judgment, Judge Mutava said that Mr Pattni’s rights to a fair hearing had been violated.
“The prosecution’s (government) conduct has failed to meet the thresholds of fair trial, which renders his further prosecution unconstitutional,” he said.
He also said the delay in commencing prosecution, the flawed report on the Goldenberg scandal, lost documents and unavailability of witnesses could not result in a fair trial.