Justice Said Chitembwe to face tribunal as JSC asks Uhuru to suspend him

High Court Judge Said Chitembwe at a Milimani court on Friday, November 12, 2021 while delivering a ruling on a case [Collins Kweyu, Standard]

The fate of High Court  Judge Said Chitembwe now lies in the hands of a tribunal after the Judicial Service Commission recommended to president Uhuru Kenyatta to suspend him for gross misconduct.

In a statement signed by the JSC’s chair Chief Justice Martha Koome, the commission stated that they are satisfied that there are sufficient grounds of misconduct to remove Justice Chitembwe and recommended to the president to appoint a tribunal to investigate him.

“The commission is satisfied that the petitions on allegations of impropriety and gross misconduct against Justice Chitembwe discloses grounds for his removal from office and has resolved to send the petition to the president for his further action,” said Koome.

It will be a battle for survival for the judge before the tribunal which will have a second chance to re-evaluate the evidence and either recommend his sacking or reinstatement.

According to Article 168 of the Constitution, the judge will be suspended from office until the tribunal makes a finding on whether to recommend his sacking or he be reinstated.

Justice Chitembwe becomes the eighth judge in post-2010 Constitution to face a tribunal over allegations of misconduct and bringing the judiciary to disrepute.

Others who have been suspended and subjected to trial before a tribunal are former Deputy CJ Nancy Barasa, former Supreme Court Judges Jackton Ojwang and Philip Tunoi, former High Court Judges Joseph Mutava and Martin Muya, and Labour Court Judge Njagi Marete.

Dr Barasa opted to resign instead of waiting to be sacked after the tribunal found her guilty of misconduct while Tunoi retired from the judiciary before the tribunal could conclude its work.

Judges Ojwang and Marete however survived and were reinstated after the tribunals found no evidence to support the allegations.

Justice Mutava and Muya were sacked after the tribunals found them guilty of misconduct.

In the Justice Chitembwe case, the JSC was investigating three petitions which had accused the judge of impropriety in handling a succession dispute while serving at the Malindi High Court and the impeachment case against former Nairobi Governor Mike Sonko.

Sonko in his complaints alleged that Justice Chitembwe mishandled his case as a result of land dispute where the judge swore to teach him a lesson.

According to Sonko, Justice Chitembwe had an interest in a land which he (Sonko) rejected. He said the judge then decided to revenge by instigating the dismissal of his petition and upholding his impeachment as the Nairobi Governor.

The ex-governor stated that since they were already in conflict over the land transaction, Justice Chitembwe refused to recuse himself from hearing his case and that he was heard discussing merits of the case with third parties to influence the outcome.

Sonko supplied JSC with audio recordings that Justice Chitembwe allegedly had with third parties including his former lawyers.

The second petition against Justice Chitembwe was filed by Imgard Beige and David Leboo who accused him of mishandling the succession case.

JSC had also moved in its own motion to investigate the judge after Sonko went public and released video and audio recordings of the judge discussing the impeachment case.

The judge maintained his innocence and denied the allegations.