Judge Chitembwe Loses In Bid To Overturn Recommendation For His Removal

The Supreme Court of Kenya has dismissed a petition filed by suspended High Court Judge Said Juma Chitembwe contesting a tribunal recommendation for his removal from office.

The ruling was made by a five-judge bench consisting of Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola, and William Ouko on Thursday, December 28.

The apex court had upheld the tribunal’s findings that Chitembwe breached the Judicial Service code of conduct and ethics. It also affirmed the Tribunal's recommendation to have the High Court judge removed from office.

“The Petition of Appeal dated 15th February 2023 is hereby dismissed. The Tribunal’s finding that the Petitioner’s conduct was in breach of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 and amounted to gross misconduct contrary to Article 168(1) (b) and (e) of the Constitution is affirmed,” the ruling read in part.

Hon. Lady Justice Njoki Ndung’u and Hon Justice William Ouko hearing petitions at the Supreme Court on August 31, 2022. /JUDICIARY

“The Tribunal’s recommendation to the President for the Petitioner’s removal from office under Article 168(1)(e) of the Constitution is hereby affirmed."

Chitembwe, through his lawyer, filed the petition on grounds that the Tribunal lacked jurisdiction to review the Judicial Service Commission's(JSC) proceedings and that it had not upheld the doctrine of judicial independence while investigating the allegations against him.

Additionally, the suspended judge argued that electronic evidence admitted by the Tribunal was obtained unlawfully and that the accusations levelled against him had not been sufficiently proven before the Tribunal made its recommendations.

While issuing the verdict, the five-judge bench ruled that the evidence presented before the court had affirmed Chitembwe's conduct as a violation of the Code of Conduct and Ethics, constituting gross misconduct and misbehaviour.

"The Court found that there was no basis upon which to conclude that the JSC violated the petitioner’s right to fair administrative action, nor did the Tribunal, for rejecting the invitation to interrogate the proceedings before the JSC, for which it had no powers," ruled the Supreme Court bench.

"The Court cannot find fault in the Tribunal’s conclusion that the petitioner’s conduct divested him of any claim to protection under the principles of judicial immunity. Judicial immunity will only be available for actions or omissions of a judge done or omitted to be done in good faith and in the lawful performance of a judicial function."

The Supreme Court judges further pointed out that the audio and video recordings presented as evidence against Chitembwe did not violate his right to privacy as he had argued.

"Those present testified as to who they were and what their engagements were in different sectors of the economy. None of them was a government agent or an enforcement officer and therefore the allegation lacked basis," added the ruling.

President William Ruto announced on Tuesday, February 7 that he would take action on the recommendations of the tribunal which asked him to initiate the removal of Judge Chitembwe.

Chitembwe was suspended on May 18, 2022, by former President Uhuru Kenyatta who appointed a 12-member tribunal to probe allegations of gross misconduct against the judge and determine his suitability.

Lady Justice Mumbi Ngugi was selected to chair the tribunal, while the lead counsel was Senior Counsel Kiragu Kimani assisted by Edward Omotii Nyang’au and Joseph Gitonga Riungu.

Other tribunal members were Justices Nzioki wa Makau, Abida Ali Aroni, Senior Counsel Fred Ojiambo, Lt. Gen. (Rtd.) Jackson W. Ndung’u, James Ochieng’ Oduol, and Dr Lydia Nzomo. Jasper M. Mbiuki and Sarah Yamo served as joint secretaries.

The tribunal was formed following a recommendation by the Judicial Service Commission (JSC) that Justice Chitembwe be removed from office over leaked videos that depicted him in a scheme to compromise an active court case.

Chitembwe was thrown into the fire following a bold expose by former Nairobi Governor, Mike Sonko through videos and photos that had claimed that the judicial officer allegedly received bribes on cases before him.

In the videos, Sonko recorded a meeting with the Judge's brother soliciting and receiving a bribe on behalf of the Judge. The video would become the topic of discussion across social media platforms and the mainstream media.