How disgraced Pattni threw Judge Mutava under the bus

[Left]High Court judge Joseph Mutava at the Supreme Court. Businessman Kamlesh Pattni (right). Picture taken on:18/7/2018 [Photo: George Njunge]

No one understands the saying that life is like a box of chocolate and you never know what you are going to get than Justice Joseph Mutava.

From a humble beginning at the United Nations High Commission for Refugees and the Capital Markets Authority, Mutava fought his way up to assistant director of legal services at the Central Bank of Kenya before the ultimate appointment as a High Court Judge in August 2011.

He was among the first outstanding lawyers hired by the Judicial Service Commission (JSC) after promulgation of the 2010 Constitution to represent the new face of the Judiciary and restore public confidence in the institution.

But as fate would have it, his rising star did not shine beyond the horizon. He never saw it coming, and when the reality came, it hit him hard leaving him with the title of the shortest ever serving judge in Kenya.

His one consolation was his wife, Kibwezi East MP Jessica Mbalu, who stuck by his side during the entire period and even offered to testify before the tribunal to save her husband.

Enough evidence

Mutava was a master of his own downfall, having been entangled in the multi-billion shilling Goldenberg scandal involving controversial billionaire Kamlesh Pattni and poking his nose in a matter being handled by another judge.

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He had a chance to walk away from the case as soon as the JSC received complaints that he was improperly handling the case but he chose to stick his nose around and paid the ultimate price of saving Pattni.

Pattni’s life had revolved in and out of court for over 20 years for allegedly masterminding one of the country’s biggest financial frauds in the early 1990s.

Like the Israelites during their slavery days in Egypt, he yearned for a godsend man to deliver him from the bondage of bearing the Goldenberg scandals through which it is suspected the country lost up to Sh100 billion.

He looked up for help when the criminal case was almost coming to a conclusion with the Director of Public Prosecution convinced there was enough evidence to nail the businessman and on March 25, 2013, Pattni found comfort in the arms of Mutava.

Pattni is now a free man building his multi-billion shillings business empire while the man who set him on the path of freedom is jobless, with a tainted reputation.

He had wedged a spirited battle for six years to clear his name but on Tuesday, the Supreme Court delivered the final blow in Mutava’s sinking boat, ruling that he is unfit to continue serving in the Judiciary for gross misconduct and gave the President the green light to sack him.

Mutava was appointed a High Court Judge in August 2011 but barely six months into office, JSC started receiving complaints regarding his conduct.

The final blow came in March 2013 when he terminated all criminal cases against Pattni and stopped police from re-arresting or charging the businessman with any offence relating to the Goldenberg scandal. Pattni was first charged in 1994 with several counts of fraud leading to the loss of Sh5.8 billion in the Goldenberg scandal.

Mutava however ruled that the businessman would not get fair trial due to the prolonged delay in prosecuting the case, the flawed report on the Goldenberg commission of inquiry, lost documents, and unavailability of witnesses some of who had died.

He further held that since the Central Bank was the complainant and had reached a settlement with Pattni to surrender the Grand Regency Hotel and return all Treasury Bills, there was no complainant to warrant pursuing the case. As if he had foreseen what will befell him, Mutava said his decision was bound to elicit uproar .

And true to his words, a petition was filed before the JSC to investigate his conduct in handling the matter and in May 2013, the JSC found that there were sufficient grounds to petition the president to suspend him and form a tribunal to investigate his conduct.

The JSC sub-committee headed by Supreme Court Judge Smokin Wanjala found that by causing the Goldenberg file to be retrieved from Nairobi and taken to him at Kericho at a time when they were inquiring allegations of misconduct against him was a serious failure.

President Uhuru Kenyatta then appointed a tribunal headed by the Court of Appeal Judge (current Chief Justice) David Maraga who in August 2016 confirmed that Mutava inappropriately handled Pattni’s file and recommended that he be sacked.

Dissatisfied with the tribunal’s findings, Mutava moved to the apex court seeking a last chance to be allowed back to the bench.

Not an innocent bystander

To his dismay, the judges unanimously agreed that there was sufficient evidence he colluded with Pattni’s lawyer Benard Kalove to have the file retrieved from safe custody and taken to him in Kericho while aware that the JSC was investigating his conduct into the matter.

According to the Supreme Court, the tribunal was right when they found that Mutava was not an innocent bystander in handling the Pattni’s case and that he knowingly gave the orders when he was not supposed to handle matters on the Judicial Review Division.

“He ignored that the fact that the matter came to him under the pretext of  Pattni’s lawyer seeking clarifications yet the fact was that the cause list disguised the nature of the application and concealed the identity of the applicant, Kamlesh Mansukhlal Damji Pattni,” ruled the judges.

The second case that sunk the judge was that he interfered with a ruling that was pending before Justice Leonard Njagi.

The apex court upheld the tribunal’s findings that Mutava persistently made inquiries about the ruling in a manner that went beyond ordinary judicial curiosity, including the attempt to solicit for a bribe on behalf of Justice Njagi.

Law Society of Kenya CEO Mercy Wambua said, Mutava might face an uphill task to get back his law practicing license on account of the Supreme Court’s findings.

According to LSK, Mutava is currently not certified to practice law and will have to go through a rigorous process before the LSK council clears him to resume active practice.

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Justice Joseph MutavaUnited Nations High CommissionCapital Markets AuthorityHigh Court JudgeJSCGoldenberg