A television (TV) interview gave away High Court judge Said Chitembwe, who will now face the tribunal that will determine whether he is to be sacked or to remain in office, The Standard on Sunday can now reveal.
An investigation by the Judicial Service Commission (JSC) shows that the Commission relied on the judge’s TV interview after former Nairobi Governor, Mike Sonko, unleashed an explosive video alleging that Justice Chitembwe was involved in gross misconduct.
The Commission has already sent its recommendation to President Uhuru Kenyatta to form a tribunal to debate removal of the judge.
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According to the Commission, the judge, on or about November 17 last year, admitted that he was related to and held several meetings with Sonko while he was battling removal from office before a bench he was presiding.
The Chief Justice Martha Koome-led Commission in its indictment against the judge stated that he failed to inform the CJ and his colleagues who were on the bench, that he knew Sonko.
At the same time, the Commission claims that he grossly misconducted himself and breached the code of conduct in the hearing of a Malindi succession case.
According to the JSC, Justice Chitembwe failed to disclose he knew Jane Mutulu Kyengo, one of the administrators and a beneficiary to the estate of the late Peter Wener.
JSC’s own motion against Justice Chitembwe, who cannot be held culpable unless the tribunal finds so, is based on gross misconduct and/or breach of conduct.
He is also accused of acquiring the same property of the late Wener through a relative or proxy, Amana Said Jirani, while the succession case was still before him.
The Commission also relied on videos produced by Sonko recorded at the judge’s residential home.
Justice Chitembwe had challenged the presentation of the videos before the High Court. In his case that is still pending before Justice Hedwig Ong’undi, Justice Chitembwe stated he neither authorised anyone to record nor release conversations that are now at the heart of the recommendation to form a tribunal for his removal from office.
According to the judge, the videos and audio clips provided to the Commission do not have a date showing when they were recorded. He also said some of the conversations involved unidentified persons.
“The video recordings posted by the first respondent (Sonko) on Facebook and Twitter and other social media platforms were recordings done without my knowledge or consent and without the consent of some of the other parties involved in the conversations whose dates are not verifiable," he said.
In its investigation report, the Commission claimed Justice Chitembwe discussed the withdrawal of an appeal challenging his verdict on the property with Mutulu, Sonko, Nepal consul Jimmy Askar and Amana Saidi. The discussion, JSC stated, was to facilitate sale of the property.
“… You held several meetings with Hon. Mike Mbuvi Sonko, his excellency Jimmy Askar and Amana Said Mwajirani in which you discussed the sale of parcel No. Kwale/Galu Kinondo/779 which reflected adversely on your impartiality as a judge,” the report reads.
The appeal was between Pacific Frontier Seas Limited and Okapi Limited Estate against Jane Mutula Kyengo. The Court of Appeal eventually overturned his verdict on the property and ordered that it be heard afresh.
Court of Appeal judges Kathurima M’inoti, Jamilla Mohammed and Sankale Kantai unanimously agreed that there were irregularities on how the judge handled the case.
For this, they decreed that the appeal by Pacific was merited, and directed that the case should be heard afresh.
The Court of Appeal observed that the issue at the heart of the case took a different trajectory and the judge framed six issues for determination, among them whether Mutulu was Wener’s beneficiary or dependant.
In the end, Justice Chitembwe found that Mutulu was Wener’s wife by a presumption of marriage and therefore a dependant.
He also found that at the time of his death, Wener, alongside John Stover, were the Pacific shareholders, while Irmgrad Beig and Wener owned Okapi.
The Commission on Wednesday this week stated that he unlawfully used his office to have Amana hold the property in trust.
“Using your judicial office to unlawfully or wrongfully cause Amana Saidi Jirani to be registered or acquire a benefit interest over land parcel and to hold the said parcel in trust for you contrary to regulation 13 (1) (a) and 30 of the code of conduct for judges,” the report continued.