Of all lawyers who held brief for the Goldenberg International architect Kamlesh Pattni, his long-time lawyer Bernard Kalove stood out. He was Mr. Fix it. In the corridors of justice, Kalove's name was intertwined with that of Pattni as he fought to save him from jail.
Kalove, who died last week, kept the courts busy with countless applications that derailed the Goldenberg cases. Some judges complained while others kept with his pace. Kalove had mastered the art of delaying hearings – a tactic that kept his client within court corridors, in the hospital, at home, and out of jail. Finally, Pattni won – thanks to the same delays initiated by Kalove.
For 20 years, Pattni and Kalove had been in the court corridors together in both civil and criminal cases touching on the Goldenberg heist, where Kenyans lost Sh5.8 billion in what was found to be the fictitious export of gold and diamonds. The other was touching on Goldenberg International affiliates – the Grand Regency Hotel, Marshalls, and Exchange Bank.
While setting Pattni free from Goldenberg prosecution, Justice Joseph Mutava said, "the delay in commencing prosecution, the flawed Bosire Report, the issues of lost documents and unavailability of witnesses… due to death or other reasons, besides fading memories for the available ones" tilts the balance in favour of Pattni's acquittal. He argued that Pattni would not get a fair trial.
Lawyers Sharad Rao (left) and Lee Muthoga (right), discuss a point with Goldenberg International architect Kamlesh Pattni outside a Nairobi court.
Photo credit: File | Nation Media Group
Kalove argued and prayed for that, and Justice Mutava seemed to agree. While Kalove's star would shine, the judgment dimmed Justice Mutava's career. He would pay for that verdict and be removed from the Judiciary for gross misconduct. It was found that the Judge was influenced to have the Goldenberg file placed before him, yet he had already been transferred to the High Court in Kericho.
The tribunal, similarly, found that Kalove was involved and was "not an innocent by-stander."
When Kalove initiated the move to have Pattni set free, it looked like a long shot; after all, this was one of Kenya's poster cases on corruption. Most people used to think an acquittal would never happen, for it would taint both the prosecution and the Judiciary. Pattni had initially agreed to enter a plea agreement, but Kalove did the unthinkable when that failed. He filed for an order to prohibit the chief magistrate from hearing or proceeding. He also sought orders to further prohibit the Attorney-General, Director of Public Prosecutions, Commissioner of Police, and chief magistrate from "arresting, charging, prosecuting, suing or commencing proceedings" against Pattni or his associated companies, including Goldenberg about the Goldenberg affair.
The timing was perfect. Kalove filed the case four days before the High Court went for the August break. Although Justice Mutava was the vacation duty judge in the Commercial and Admiralty division, the case found its way to him — even though it was a Judicial Review application. He also had no authority to hear the case since Justice Florence Muchemi was the vacation duty Judge.
But Justice Mutava granted Pattni the right to seek judicial review without hearing the other side. As a result, a judicial review was filed on August 28, 2012. This move was Kalove's best - never losing sight of his intentions.
In mid-September, Kalove requested the Deputy Registrar that the matter be mentioned before Justice Mutava "for directions" since it was "part-heard" by him. In another letter, Kalove said there "is some clarification required by all parties ... in respect to the orders issued by the Hon Judge". This request was a misrepresentation, and Kalove admitted later that this was an "oversight." It was a lie.
Businessman Kamlesh Pattni (left) chats with Senior Counsel Gibson Kamau Kuria at Kenyatta International Convention Centre in Nairobi.
Photo credit: File | Nation Media Group
The Judicial tribunal, which recommended Mutava's removal, found that Kalove "schemed to have the matter placed before the judge (Mutava)" before, during, and after the vacation.
While the Judicial Service Commission had directed that the Pattni file should be kept under safe custody in Nairobi, it was placed in a cabinet in Mutava's former chambers, from where he collected it and took it to Kericho. Kalove followed it there to argue his case, and it was agreed that all arguments should be written. Justice Mutava would later say he was "eager to clear his pending work from Nairobi," [and] so he went with the Pattni file.
According to the Judicial tribunal that heard his dismissal case, "These entire actions amount[ed] to either wanton impunity or extreme naivety…The facts point to a clear determination on the part of the Judge to deal with the matter irrespective of the damage that action could cause."
It was found that Justice Mutava allocated himself the Goldenberg case file without the knowledge of the duty judge and proceeded to write a judgment.
Mutava was prepared for that: "It will be foolhardy not to observe that that the verdict of this court in the present application is bound elicit din, clamour and hostility in public opinion and sections of the media…The discharge of a judge's constitutional mandate is never easy. It is not meant for the faint-hearted. Any reaction arising from a decision made by a judge should be seen as one of the many vagaries of the calling, as long as the Judge's appreciation of the law and facts, his analysis and conclusions and, above all, the Judge's conscience, remain sanctified. I am therefore comfortable and well prepared for any such reaction."
Justice Joseph Mutava follows proceedings at the KICC in Nairobi on 18 April 2016, during the sitting of a tribunal investigating him over the Goldenberg scandal.
Photo credit: Evans Habil | Nation Media Group
In the Grand Regency Hotel case, Kalove negotiated with Central Bank of Kenya for an out-of-court settlement in 2009. Kalove told the court that CBK had dropped out of the Pattni case, triggering an uproar on why CBK opted out.
"The complainant in this case settled the matter with Mr Pattni out of court. He handed over the five-star Laico Regency formerly known as the Grand Regency Hotel to the CBK," Mr Kalove told the court. It was his first victory, and Pattni was off the hook.
Kalove went with most of Pattni's secrets when he died last week. He stood by his client – the way criminal lawyers Byron Georgiadis and S.M. Otieno – did before him. But Kalove was only known for handling Pattni's Goldenberg cases. Like Siamese twins, they walked together in the High Court corridors mastering both the front and back doors, and played those they could like marionettes.
In 1998, Kalove and Pattni were charged together for allegedly forging documents transferring the Duty-Free Shops at the Jomo Kenyatta International Airport to Pattni's possession. And when Pattni decided to go into politics and acquired former Mukaru Ng'ang'a's Kenya National Democratic Alliance (Kenda) party in 2006, Kalove did the paperwork and became the party's secretary general.
Together, Kalove and Pattni trod the corridors of justice and fought to get off the hook in the Sh5.8 billion case. It was one good fight – and Kalove finished the race. Alone.
