Obado's petition at core of Justice Ojwang's probe

Chief Justice David Maraga and Justice Jackton Ojwang during the hearing of the 2017 presidential election petition. [File, Standard]

A new twist has emerged in the investigation into the conduct of Supreme Court judge Jackton Ojwang.

In a statement read in public on March 20 to announce the decision to recommend a tribunal to investigate allegations against the judge, the Judicial Service Commission (JSC) noted the complaint arose from the Awendo Sugar Belt case.

The case was filed by the Town Council of Awendo in the Supreme Court in 2014 against 13 residents who were challenging acquisition of land by the Government to develop the South Nyanza Sugar scheme and expand Awendo town.

“Hon Judge, particularly in sitting (with other judges of the Supreme Court) on the application in Supreme Court Misc Application No. 49 of 2014, Town Council of Awendo Vs Nelson Oduor Onyango and Others despite being conflicted and being closely associated with the County Government of Migori and the Governor Hon. Okoth Obado,” said the JSC statement which was read by its chair Chief Justice David Maraga.

Awendo case

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However, we can now reveal that the JSC petition to President Uhuru Kenyatta — asking him to suspend the judge and appoint a tribunal to investigate his conduct — dwells more on allegations against the judge with respect to the 2014 election petition involving Migori Governor Okoth Obado and his rival Edward Oyugi. The Awendo case is only mentioned.

Notably, Justice Ojwang’s reply to JSC only addressed the Awendo case and never made reference to the election petition which is now the core reason he will face the Justice Alnasir Visram-led tribunal.

“Purely in exercise of pragmatic caution, in the foregoing circumstances, Justice Ojwang was not part of the Supreme Court bench that, then, proceeded in the earlier formal determination, and heard and determined the main grievance which had related interests in the sugar belt area set around the town of Awendo in the county of Migori,” Justice Ojwang’s reply to JSC dated March 15 this year read in part.

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The CJ wrote to the President on March 19, 2019.  

The Standard requested JSC to allow it to peruse Justice Ojwang’s complaint on Thursday at 2pm.

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This reporter initially made a phone call to a source in JSC who informed him to walk to the secretariat which is housed at Reinsurance Plaza and seek permission. He was then informed to write a formal letter to JSC Secretary Anne Amadi which he did and was informed the secretariat would get back on Friday after deliberations. It never did.

However, The Standard obtained a copy of the JSC petition to the President in which JSC said Justice Ojwang’s accusers alleged the governor constructed a private road leading to the judge’s residence in Uriri, Migori County, while an election petition was still pending before the Supreme Court.

The road’s construction, according to JSC petition, commenced seven days after Obado filed his election petition before the Supreme Court on April 3, 2014.

“From the uncontroverted evidence adduced by the petitioners, there existed a close personal relationship between the judge and the governor and the leadership of Migori County which created a perception of bias and conflict of interest. The construction of the road was viewed as an inducement to influence the judge to favour the governor,” read the petition to the President.

JSC informed the President that Ojwang ought to have recused himself from any case touching on Migori even without being asked to do so by petitioners.

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Justice Ojwang’s accusers led by Nelson Oduor Onyango raised the governor’s election petition in a supporting affidavit to the Awendo Sugar belt case.

It has also emerged that the Supreme Court has never made a substantive judgement on the Awendo Sugar belt case.

By the time construction of the murram road is alleged to have commenced on April 11, 2014, the Awendo Sugar belt case was at the Court of Appeal. 

The Migori County election petition was heard by a full Supreme Court bench composed of former Justices Mutunga, Kalpana Rawal, Ojwang, Phillip Tunoi, Mohamed Ibrahim, Njoki Ndung’u and Smokin Wanjala.

Mr Obado had moved to the Supreme Court after his then rival Edward Oyugi trounced him in the Court of Appeal.

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In the Court of Appeal, Justices Walter Otieno, William Ouko and Sankale ole Kantai had reversed a High Court decision declaring that Obado was validly elected in 2013.

Unanimously agreed

While affirming Justice Esther Maina’s decision, the seven-member Supreme Court bench unanimously agreed on July 17, 2014 that the declaration by Independent Electoral and Boundaries Commission that Obado had won be restored. 

The other reason Ojwang was to face a tribunal was that he failed to attend the hearing of a complaint before a committee composed of Court of Appeal judges Mohamed Warsame, Mercy Ndeche and Felix Kosgei, and High Court judge Aggrey Muchelule.

He was also accused of being contemptuous of JSC over a letter he wrote to the commission on March 15, 2019 indicating his discontent on JSC committee summonses over another complaint which had been filed, and withdrawn, by lawyer Apollo Mboya.

The CJ will preside over the swearing-in of the six-member tribunal today.

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Supreme CourtJSC petitionJackton OjwangChief Justice David MaragaThe Standard