By PAUL OGEMBA email@example.com
Posted Friday, May 17 2013 at 19:34
Posted Friday, May 17 2013 at 19:34
The Judicial Service Commission (JSC) has bowed to public pressure and suspended High Court Judge Justice Joseph Mutava over allegations of misconduct.
Justice Mutava was facing 11 counts of impropriety, eight of which were dismissed due to lack of evidence.
The decision was reached Friday evening at a special sitting of the JSC where the findings of a sub-committee headed by Supreme Court judge Justice Smokin Wanjala were discussed for the second time in a month.
The committee asked President Kenyatta to appoint a tribunal to investigate the conduct of the judge on three counts, which could lead to his dismissal from the Judiciary.
A statement signed by Prof Christine Mango, the JSC deputy chairperson, said that of the remaining three complaints, the Commission was satisfied that the complaints disclosed sufficient grounds to petition President Kenyatta to appoint a tribunal to inquire into the conduct of Mr Justice Joseph Mbalu Mutava.
The President now has 14 days to appoint a tribunal. Judge Mutava could also resign from the Judiciary to avoid the panel.
Claims not listed
Chief Justice Willy Mutunga is on a working tour of the US.
The committee did not name the eight allegations the judge was cleared of or the three that were upheld. It also did not explain why only 11 allegations were not considered, when it had recorded 13 complaints.
Last week the Saturday Nation reported that the JSC had cleared Justice Mutava after the sub-committee found no grounds for disciplinary action. But Justice Wanjala said on Monday they had not reached a decision, while an official in the registrar’s office said the committee had only cleared him on one account.
This caused public uproar, with the Law Society of Kenya demanding to see the investigation file.
Yesterday, the law society welcomed the decision, saying, it was long overdue.
Said Mr Apollo Mboya, the secretary: “If that is the case and in consideration of the circumstances, it is a good thing since it will give a chance to all litigants to present before the tribunal all issues they have against Justice Mutava.
“Chairman Eric Mutua said some individuals in the JSC had tried to cover up the issue.
“We hope the President will select people who cannot be compromised,” he said.
Lawyer Waweru Gatonye said the tribunal was the right way to go.
“When there are very serious allegations about a judge, it is best to have investigations by a tribunal,” he said.
Another lawyer, Mr Antony Oluoch, said the judge was not impartial in handling Mr Pattni’s cases.
“There was always something that was not adding up in the manner in which he cleared Pattni,” he said, adding that if the commission had cleared the judge, it would have been a travesty of justice.
The commission said Justice Mutava had responded to the allegations against him in writing.
“The judge was also accorded an opportunity to appear in person before the committee on diverse dates while accompanied by his lawyer,” it said.
Prof Mango said a committee was formed on 1 December 2012 to investigate the allegations against the judge and examined both oral and written statements from 28 witnesses.
Dr Mango said a committee was formed on December 1, 2012 to investigate the allegations against the judge and examined both oral and written statements from 28 witnesses.
The committee started its inquiry on 17 December 2012 and finished on 14 May 2013, said Prof Mango. However, a member of the commission, who could not be named because they are sworn to secrecy, told the Saturday Nation that the committee met on May 3 and cleared the judge of the allegations.
But the decision was not made public for fear of outrage, especially following the Supreme Court ruling that did not go down well with some Kenyans.
Since March last year, a dozen complaints by the law society, Kenya Airports Authority, individual lawyers, a judge and a civil society group have been filed against the judge.
He caused uproar last month when he acquitted businessman Kamlesh Pattni of all charges related to the Goldenberg scandal on grounds that he would not get a fair trial because the case had dragged on for two decades.
The orders also restrained police from arresting or prosecuting the businessman.
Justice Mutava, who had been moved from Milimani to Kericho, was also accused of interfering with the judgment of Justice Leonard Njagi, who has since been found by the Judges and Magistrates Vetting Board to be unfit to continue serving in the Judiciary.
Justice Njagi swore an affidavit to support the allegations.
The three-member sub-committee of Justice Wanjala, Chief Registrar of the Judiciary Gladys Shollei and the Rev Samuel Kobia has now put the fate of the judge firmly in the hands of a tribunal. He becomes the second new judge to face a tribunal after deputy CJ Nancy Baraza, who was found unsuitable for office last year.