Justice Chitembwe heads to Supreme Court, accuses Mike Sonko of faking evidence

According to the judge, Sonko hatched a deliberate scheme to trap him by using their distant relationship and blinded the tribunal through fake and illegally obtained video recordings which should have not been admitted as evidence.

The judge, through lawyer Peter Wena, raised 12 grounds of appeal to convince the apex court that the tribunal, chaired by Court of Appeal judge Mumbi Ngugi, was misled through illegal evidence by Sonko to have him removed from office.

His main arguments are that Sonko was on a revenge mission to destroy him after he led a bench of three judges that upheld his impeachment by the Nairobi County Assembly and that the Judicial Service Commission (JSC) was biased against him when handling the case.

"It was an injustice when the tribunal failed to find that the video and audio recordings were modified and edited by Sonko who was on a revenge mission. The tribunal even refused to admit that the recordings were made in violation of the judge's right to privacy," said Wena.

Relationship with Sonko

Justice Chitembwe also denied ever meeting with Sonko to strike a deal for a piece of land in Kwale during the pendency of his impeachment case, and that his relationship with the ex-governor was not so close as to require disclosure to the Chief Justice and the other judges.

Wena stated that Chitembwe's acquaintance with Sonko prior to the hearing of his impeachment case was not such that there would be a reasonable apprehension that he would be biased against the ex-governor so as to require him to recuse himself from the three-judge bench.

"The tribunal failed to find that the judge had no dealings with Sonko as to create a conflict of interest during the hearings of his impeachment case and that the alleged proxy the judge used to acquire the land in Kwale had denied such claims," said Wena.

According to the lawyer, the tribunal wrongly found that the judge had calls and meetings at his house in Mountain View Estate with Sonko and others so as to facilitate the conclusion of a succession case in Malindi in order to acquire the land in Kwale.

In any case, Mr Wena argued that the succession case in Malindi where the judge made a determination was overturned by the Court of Appeal which means he did not acquire any direct benefit from the property.

He added that the tribunal erred by refusing to admit that they lacked jurisdiction to hear the matter on account that JSC acted illegally and is commencing investigations into his conduct following the petition by Sonko against his conduct.

Justice Chitembwe wants the Supreme Court to find that the JSC had no power to initiate a motion to remove him from office while relying on petitions by third parties and that the commission acted in violation of constitutional requirements for fair administrative action.

He also wants the apex court to declare that all allegations made against him by Sonko were not proven to the required standard and that his actions in dealing with the ex-governor did not amount to gross misconduct.

"We want a declaration that the findings and recommendations to President William Ruto that Justice Chitembwe should be removed from office be quashed and an order that the judge resumes his duties as a judge of the High Court," said Wena.

The justice Ngugi-led tribunal had on February 7 found that justice Chitembwe is not fit to hold office having breached the law and trust bestowed on him and recommended to President Ruto to sack him.

The tribunal was investigating three cases where Justice Chitembwe was accused of impropriety in handling a succession dispute while serving at the Malindi High Court and the impeachment case against Sonko.

It ruled that contrary to the position taken by the judge that his relationship with Sonko was too remote, the relationship was actually close and warranted his recusal from hearing the petitions against the impeachment.

The second allegation was that the judge lacked integrity on account that he failed to exercise his judicial functions independently by engaging with persons who were litigants in matters that were before him.

According to the tribunal, there was evidence backed by secret video and audio recordings of a meeting between Chitembwe and Sonko at his house in Mountain View Estate in which they discussed the case in detail.

He was further found guilty of lack of accountability, involvement in corrupt practices and impropriety by presiding over a succession case in Malindi in which he had an interest in acquiring one of the properties in dispute.

Other members of the tribunal were senior counsel Fred Ojiambo, justice Abida Ali Aroni, justice Nzioki wa Makau, lawyer James Ochieng Oduol, Lt. Gen. (Rtd) Jackson Ndung'u and Dr Lydia Nzomo while senior counsel Kiragu Kimani was the tribunal's lead counsel assisted by Joseph Riungu.