Attorney-General Justin Muturi wants the Supreme Court to uphold the findings and decision of a tribunal that recommended the removal of suspended judge Juma Chitembwe from office over gross misconduct.
Mr Muturi, in his filings at the Apex Court, wants the recommendations of the tribunal endorsed and have the High Court judge dismissed from the Judiciary.
On Monday, the Supreme Court registrar Bernard Kasavuli granted the Attorney-General and the suspended judge 15 days each to file their final documents in the petition of appeal that involves the latter's removal from office.
In his response to the judge's appeal, the AG says the appeal is "premised on a misconception of the role and functions of the tribunal under the Constitution".
Through chief state counsel Oscar Eredi and deputy chief state counsel Schola Mbilo, the AG also says Justice Chitembwe's petition of appeal against the decision of the tribunal lacks merit and the same should be dismissed. According to the state counsels, the allegations leveled against Justice Chitembwe were proved to the required standard of proof.
"The tribunal did not err in law or fact in arriving at its findings and recommendations. The tribunal was neither biased nor had a predetermined mind against Justice Chitembwe as alleged or at all. The tribunal fulfilled its duties under the law and did not misdirect itself either in fact or law," says the counsels in the documents.
The tribunal chaired by Justice Mumbi Ngugi recommended for Justice Chitembwe's removal after finding him guilty of six gross misconduct allegations and breaching the judicial code of conduct.
He was found guilty of advising parties on the procedure to be followed to have an appeal which was filed against his own judgment withdrawn and acquiring a proprietary interest in a land parcel in Kinondo, Kwale county, which was the subject of a succession case pending before him.
Justice Chitembwe wants the Supreme Court to set aside the findings and declare that the allegations leveled against him were not proved to the required standard of proof.
Through lawyer Peter Wena, the judge also wants a declaration that his actions that led to the disciplinary case did not amount to gross misconduct or misbehavior and were not in breach of the Constitution or the Code of Conduct and Ethics warranting his removal from office.
Also sought is a declaration that the Judicial Service Commission (JSC) acted in violation of the requirements of Article 47 and 50 of the Constitution and his right to fair administrative action was violated. Justice Chitembwe's removal proceedings were initiated by the JSC in 2021.
But objecting to the appeal, the AG says that the tribunal found and determined that the JSC had 'locus standi' to initiate the removal proceedings on its own motion in line with provisions of Article 168(2) of the Constitution.
It provides that the removal of a judge may be initiated only by JSC acting on its own motion or on the petition of any person to the JSC.
"The tribunal did not sit on appeal over the decision of JSC but arrived at an independent finding based on its own consideration of all the relevant facts, evidence and the applicable law. The tribunal was satisfied that the JSC properly discharged its mandate under Article 168(4) of the Constitution," says the state counsels.
They add that Justice Chitembwe was accorded a fair administrative process by the JSC and that his rights were not violated as alleged.
Further that the tribunal's findings and determination were based on a correct appreciation of the law, facts, and the peculiar circumstances of the matter.
"The tribunal's findings and recommendations were based on admissible and relevant evidence adduced before it, the applicable law and it was satisfied that required standard of proof was met. The tribunal properly considered the allegations against Justice Chitembwe and properly found and determined that all the allegations made against him were proved to the required standard," says the state counsels in the objection.
The appeal will be mentioned on April 24, 2023 to confirm parties have filed their written arguments so that the matter can proceed to hearing before the bench.
