The Rogue judge: 'Justice Chitembwe wanted his cut in Sh305mn land deal paid in dollars, dirhams'
Judge Said Juma Chitembwe. The High Court has again declined a request by Mr Chitembwe to block the JSC from investigating him over accusations of bribery and gross misconduct.
Suspended High Court Judge Juma Chitembwe preferred his share of a Sh305 million land deal in Kinondo, Kwale County, be taken to his house in dirhams and dollars, a transaction that would ultimately lead to his downfall.
According to the report of the tribunal formed to investigate his conduct, the judge also used a proxy to acquire beneficial interest in a land parcel that was the subject of a case that he was presiding over at the High Court in Malindi. Another unidentified judge in Malindi got Sh30 million for stepping in for Justice Chitembwe to deliver judgment in a succession case where the subject land was part of the estate.
The report includes damning evidence adduced before the tribunal on how money changed hands in two cases – a property succession in Malindi and the impeachment of former Nairobi Governor Mike Sonko – in which the embattled judge was on the bench.
The evidence, which includes bank transactions and telephone calls data, saw the tribunal recommend the judge’s removal from office.
The petition for his removal was submitted by the Judicial Service Commission (JSC), arising from a fallout with Mr Sonko, who the tribunal heard was a distant relative.
Although the judge told the tribunal they were related through marriage – the judge’s late step cousin was married to Mr Sonko’s aunt – Mr Chitembwe said he first met the former governor in 2016 in Malindi, where he was serving as a judge.
Their reuniting in Nairobi would set the stage for transactions that would sour their relationship and lead to the ouster recommendation.
The evidence was not available to the public during the tribunal’s sittings because the hearings were conducted in private.
The report further indicates that another unidentified judge in Nairobi had demanded Sh5 million from Mr Sonko to conclude a Sh100 million legal fees dispute pitting the former governor and a city lawyer. Justice Chitembwe was to get a commission of Sh1 million from the deal, the 250-page report released yesterday indicates.
Appellate Judge Mumbi Ngugi hands over the tribal report to President Wiliam Ruto at State House on Tuesday February 7, 2023.
It also contains details of Justice Chitembwe’s private engagement with Mr Sonko’s aide Francis Wambua, State House official George Kariuki, former Nairobi County Assembly Majority Leader and now Isiolo Governor Abdi Guyo and lawyers during the impeachment case.
Relating to Mr Sonko’s impeachment case, the former governor testified before the tribunal that his ally Winnie Korir took Sh3 million to the judge’s house “because the judge had indicated that he urgently needed it”. He added that on May 22, 2021, the judge called for a meeting in Diani before the judgment in the impeachment case had been delivered. In the meeting they discussed the land transactions and his then ongoing impeachment case.
The former governor stated that Justice Chitembwe communicated that two of the three judges handling the case had accepted some money advanced to them by a respondent in the case and that he was required to pay double the amount to be safe. He further stated that he told the judge that he could not raise any money at the time because of the ongoing land transaction in Kwale.
On the land transaction, Justice Chitembwe and Mr Sonko got Sh305 million in 2021 from the Consul of Nepal in Kenya Jimmy Ibrahim Askar, who said that some Nepalese investors approached him to assist them in identifying land to put up a hotel in the South Coast.
Mr Askar identified two land parcels adjacent to each other, one belonging to Mr Sonko and the other to Mr Amana Jirani, a proxy for Justice Chitembwe. The purchase price of both properties was Sh305 million.
Mr Sonko and the Justice Chitembwe agreed to team up and proceed with the transaction jointly.
But the properties (Kwale/Galu Kinondo/779 and Kwale/Galu Kinondo/1222) were subject to a succession case at the High Court in Malindi, involving the estate of Peter Werner.
The report indicates that Justice Chitembwe assisted the widow Jane Mutulu Kyengo to get the ownership and in return he purchased parcel No.779 through Jirani.
After the transaction with the Nepalese sailed through, the parties agreed to have Sh60 million paid to parties at the Court of Appeal. The report indicates that the judge also insisted that some money be taken to his house in dirhams and dollars and that “the ‘Maasais’ be dealt with through their advocate, Mr Omwansa”.
Justice Chitembwe also held meetings at his residential home in Mountain View estate, Nairobi with various persons to advice and discuss withdrawal of an appeal that was pending at the Court of Appeal in Malindi that emanated from his judgment.
The tribunal heard that when the land dispute moved to the Court of Appeal, Justice Chitembwe had promised to approach the judges on the bench. Mr Sonko said the judge suggested that they approach Justice Daniel Musinga, which Sonko declined stating that he (Justice Musinga) was a born-again Christian who did not take bribes.
Resulting from the tribunal’s recommendation, Justice Chitembwe is now one step away from being removed from office over alleged gross misconduct and misbehaviour, although he says he will challenge the intended removal.
Asked about his take on the tribunal’s findings, the judge told the Nation “Not much I can say” and indicated he would be filing an appeal to the Supreme Court.
Should he move to the Supreme Court, it will be his last chance to prove his innocence on the misconduct charges.
In the past, some of judges on the edge of being removed from office survived after the Supreme Court reversed the tribunals’ recommendations.
According to article 168(8) of the constitution, a judge who is aggrieved by a decision of the tribunal may challenge it at the Supreme Court. Justice Chitembwe will therefore have to file his appeal within 10 days after the tribunal makes its recommendation.
The tribunal chaired by Justice Mumbi Ngugi found Justice Chitembwe guilty of four out of six misconduct allegations levelled against him by his employer the JSC.
He was found guilty of acquiring a proprietary interest in the land parcel in Kindono, which was the subject of a succession case before him. He therefore breached the Judicial Service Code of Conduct for Judges.
“There is sufficient evidence to prove that the judge acquired an interest over land parcel No.Kwale/Galu Kinondo/779 through his relative and proxy Mr Amana Saidi Jirani,” said the tribunal in its findings.
Justice Chitembwe was also found guilty of discussing the withdrawal of a case at the Court of Appeal in Malindi at his residential home in Mountain View with Ms Kyengo, Mr Sonko, Mr Askar, Jirani among others. The case was between Pacific Frontiers Seas Limited and Ms Kyengo.
During the meeting, they discussed the sale of the land in Kinondo for his personal benefit and the withdrawal of an appeal challenging his verdict on the property.
“The judge grossly misconducted himself by advising the parties on the procedure to be followed to have an appeal which was filed against his own judgment withdrawn and promising to discuss the matter with other judges and judicial officers who were handling the said appeal,” said the tribunal.
Thirdly, the judge grossly misconducted himself by presiding over a bench in the impeachment case against Mr Sonko being known and closely associated with the former governor.
“The judge grossly misconducted himself by presiding over a bench whilst being known and closely associated with Mr Sonko, one of the petitioners,” said the tribunal in its report. The judge failed to disclose to the Chief Justice and his colleagues on the bench and the parties that he was personally known to Mr Sonko.
In a television interview on November 18, 2021, the judge admitted that the former governor was known to him and was his relative.
Fourthly, Justice Chitembwe held a meeting with Mr Sonko during which he offered legal advice on the viability of an appeal and the proposed grounds of appeal against the judgment that upheld his impeachment.
The genesis of the judge’s tribulations are videos leaked by Mr Sonko in 2021 after lost his bid to overturn his impeachment. The videos depicted the judge in a scheme to compromise an active court case involving the property succession in Kwale.
According to the Constitution, recommendations of the tribunal to the President are binding. The President acts in accordance with the recommendations made by the tribunal after 10 days if no appeal is filed.
