A Kisumu resident has filed a petition challenging the suspension of High Court judge Said Juma Chitembwe.
The embattled judge was suspended by President Uhuru Kenyatta in May for alleged gross misconduct and impropriety following recommendations by the Judicial Service Commission (JSC).
Kassim Mwatako, a petitioner who claims he has knowledge about the controversies surrounding Chitembwe’s suspension, wants the Employment and Labour Relations Court in Kisumut to quash JSC recommendations for the removal of the judge from office.
In a suit filed under a certificate of urgency, the petitioner has sued JSC and wants its action against the judge declared null and void. He has also listed Chitembwe as an interested party in the case.
Mwatako has listed 34 grounds he is seeking to rely on to have the case ruled in Chitembwe’s favour.
He says the evidence JSC relied on to decide the fate of the embattled judge is weak.
According to the petitioner, the decision by JSC to commence the removal process of the judge has placed the rule of law under a threat.
He also wants JSC’s recommendation to the president in regards to the removal of the judge declared null and void, claiming the fundamental rights of Chitembwe will be violated.
Mwatako claims that the judge has been condemned unheard and his statement from an interview he had with a TV station was taken out of context and used against him.
In March, this year, JSC recommended the suspension of the judge over allegations of gross misconduct and impropriety.
The commission further asked President Kenyatta to form a tribunal to investigate the allegations, pursuant to Article 168 (4) of the Constitution.
In his petition, however, Mwatako claims the entire process of the removal of the judge is driven by a vendetta from JSC and wants the court to declare the removal process as null and void.
He wants the court to strike out an electronic evidence that was used by JSC in its proceedings to help it determine the fate of Chitembwe.
According to Mwatako, JSC relied on a video clip that was shared on the internet that appeared to implicate the judge in a land case he had presided over while working as a judge in Malindi.
The video clip was shared by former Nairobi Governor Mike Sonko who had claimed that the judge was in a plot to fix him and ensure that he does not return as the Nairobi Governor.
Court documents indicate that the judge was part of the three-judge bench that heard a petition against Sonko's impeachment.
In his petition, however, Mwatako claims that the judge undertook his duty constitutionally and their bench dismissed the suit. The move, he claims, was also supported by subsequent dismissal of appeals in higher courts.
"It follows therefore that the judge acted as per his judicial code and conducted judicial duties accordingly without any partiality," says the petitioner.
He wants the court to declare the electronic evidence null and void.
"Unless the court intervenes and stops the respondents, the interested party’s fundamental rights to fair administrative action as enshrined under Article 28 of the Constitution shall be violently infringed," reads his petition.
According to the petitioner, JSC unlawfully procured electronic evidence.
“The respondents accorded themselves the duty of fishing for alleged evidence to fix the interested party in an act that manifests malice, odium, hatred and discrimination against the interested party," he said.
The case will be mentioned on September 19, 2022, for further directions.