Embattled High court Justice Joseph Mutava lawyer Philip Nyachoti during a press conference in his Chambers at museum hill in Nairobi on Thursday September 22,2016..
BY SAM ALFAN.
Suspended High Court Judge Joseph Mutava now wants the Supreme Court to quash the recommendations by a seven-member tribunal to the president Uhuru Kenyatta that he be removed from office for alleged misconduct.
“The tribunal lacked jurisdiction to conduct any investigations against the petitioner since it was unconstitutionally constituted and, therefore, any recommendations arrived at by the tribunal are void,” lawyer Philip Nyachoti says in the petition lodged in the Supreme Court yesterday.
The lawyer has argued that the tribunal’s findings, which were handed over to President Uhuru Kenyatta on September 21, were based on complaints that had been voluntarily withdrawn, that the complainants did not give evidence and that third parties purported to fix him.
The tribunal concluded that three specific allegations regarding the manner in which he quashed the Sh5.7 billion criminal case against Goldenberg suspect Kamlesh Pattni had been proved since they amounted to gross misconduct.
“The judgment in the Pattni case has never been reversed by any court of law despite there being mechanisms available to any parties in the form of an appeal,” Nyachoti said in the petition.
Mutava was found culpable of having influenced retired High Court Judge Leonard Njagi to rule in favor of Sehit Investments Ltd in a Sh200million property dispute with businesswoman Josephine Onyango. The retired Judicial officer is said to have received a text message from Justice Mutava on September 6, 2012 to communicate the request.
Pattni had petitioned the High Court to terminate the case on July 26, 2012 after the Director of Public Prosecutions, Keriako Tobiko, had dismissed his plea-bargain request. The Judge gave orders blocking Tobiko’s decision and suspended all criminal proceedings relating to findings by the Commission of Inquiry into the Goldenberg scandal.
The Supreme Court, once it is re-constituted, will be asked to invalidate the tribunal’s recommendations on the basis that the appointment of its members was irregular. The first five members were appointed on May 30, 2013 and the other two on June 17, 2013. The President is required to appoint the entire team within 14 days after receiving the complaints from the Judicial Service Commission (JSC).
The High Court had restrained the tribunal from investigating the Judge on June 28, 2013 on the basis that the JSC had not accorded him a fair hearing. On February 17, 2014, the three-Judge bench declared the tribunal incompetent since two of its members had been appointed beyond the 14-day statutory deadline.
The Court of Appeal, in a judgment delivered on May 8, last year, reversed the High Court decision and directed the tribunal to carry out its mandate. Justice Mutava was aggrieved by the decision and lodged a notice of appeal to the Supreme Court on May 21, last year.
Justice Mutava, who was appointed a Judge of the High Court on August 23, 2011,was suspended on May 30, 2013 on the recommendation of theJSC after its sub-committee, chaired by Supreme Court Judge Smokin Wanjala, cleared him of eight allegations but found sufficient evidence against him on three complaints of corruption and misconduct.