Tribunal declines to respond to Mbaluto claims
By Evelyn Kwamboka
A tribunal that recommended the sacking of a judge has declined to respond to allegations made in a court case.
Members of the tribunal, chaired by Lady Justice Jessie Lesiit, said they did not wish to be heard by the High Court at a stage when the applicant, Justice Tom Mbaluto, is seeking orders to file a Judicial Review application against them.
"The tribunal members are leaving the court to make its decision. No affidavits or response has been filed and there is no intention to do so at this stage," the court was told.
This gave a chance to Justice Mbaluto to argue his application without any opposition from the tribunal. Mbaluto wants the court to quash the tribunal’s decision that he be removed from the office of puisne judge for misbehaviour.
He wants the tribunal’s decision that though the direct evidence supporting the allegation of bribery had a narrow base, he was influenced by factors other than evidence before him in a case at the High Court in Kisii.
Yesterday, Justice Mbaluto told the court that since the tribunal has declined to file any response to his allegations, the court should find that he has a case against the tribunal and Attorney-General Amos Wako.
The other tribunal members are High Court judges Jessie Lesiit, Hannah Okwengu, Jackton Ojwang, Festus Azangalala and Luka Kimaru, who recommended to President Kibaki to sack Mbaluto.
"Even if the tribunal members are High Court judges, it cannot be immune to Judicial Review process," he said. The judge’s advocate Kethie Kilonzo told the court the tribunal acted beyond its jurisdiction even after warning itself that it was limited to inquiring into the actual complaint made by Chief Justice Evan Gicheru to the President.
"In making its finding, the tribunal had no powers to convert itself into a Court of Appeal to determine whether the judge’s decision in a Kisii case was correct," she said.
She argued that the tribunal did not base its finding on evidence but concluded his client had taken a bribe because it could have delivered a different judgment in the Kisii case.
The court heard that the tribunal ignored all the evidence given in favour of the judge by its witnesses.
"I urge the court to find that the tribunal went outside its mandate and made errors in law and facts, hence making a finding that was not supported by any evidence or matters before it," she said. The court will deliver its ruling on July 10.
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