Justice Said Chitembwe wants JSC hearings suspended
By Kamau Muthoni
| December 9th 2021
High Court judge Said Chitembwe has moved to court to block Judicial Service Commission’s from hearing four petitions filed to have him removed from office.
Justice Chitembwe argues that the hearing of four petitions filed by former Nairobi Governor Mike Sonko, Francis Wambua, Imgrad Geige and David Leboo Ole Kilusu should be suspended until the case is heard and determined.
JSC set December 14 as the hearing date. The commission, led by Chief Justice Martha Koome, directed that he files his response to the allegations.
It also directed that he lists his own witnesses and provides their statements, and furnish them with documents which he will rely on during the hearing.
But the judge says that the evidence adduced by the four was illegally obtained and a breach of his privacy.
He says that he neither authorised anyone to record nor release conversations which are now at the heart of the cases seeking his removal.
In the case where he has also sued JSC, Justice Chitembwe laments that the commission has no known procedure of hearing cases on removal of judges adding that it will be unfair to rely on the evidence.
Chitembwe has also sued Amana Said Jirani, a man who Sonko claimed to be his relative and allegedly involved in the bribery saga.
According to the judge, the videos and audio clips provided to the commission do not have a date on when they were recorded.
At the same time, he says that 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,” argues Chitembwe.
The judge also complains about another petition filed in relation to a succession case he handled in Malindi. According to him, the petition was filed on November 17, 2021, before the JSC.
He claims that it has generalised claims, which are not supported by a sworn affidavit.
Justice Chitembwe says that he heard and determined a dispute between Pacific Frontier Seas Limited and Okapi Limited Estate against Jane Mutula Kyengo in 2018.
He adds that the objectors in Malindi Succession case number 27 of 2015 appealed his decision before the Court of Appeal in Malindi.
According to him, the case is still pending determination as the initial three-judge bench withdrew.
Through his lawyer Peter Wena, the judge now argues that the commission cannot entertain the complaint in relation to the dispute as it will amount to discussing a matter which is still before a court.
“Although the sixth respondent (JSC) has no formal rules of procedure, it has been the standard practice based on the principle of sub judice not to consider a complaint or petition in respect of which the subject matter is pending in a court of law,” his court papers read.
He adds that Sonko’s appeal challenging his ouster from City Hall is also pending before the Court of Appeal.
The judge also laments that he was given a short notice to file his side of the story, and that it is unfair to have him respond within 14 days. He cites a minimum of 21 days as an ideal duration.
“The petitioner is dissatisfied with the manner in which the sixth respondent has handled the three petitions and the sixth respondent’s (JSC) proceedings invoked pursuant to Article 168(1) and (2) of the Constitution, in particular, the disregard of the petitioner’s rights to fair administrative actions and fair hearing.”
He also faults the commission for allocating one day to hear all the four petitions and failing to provide him with the video clips, telephone conversation recordings and Facebook posts that it relied on to decide that he has to respond.
Justice Chitembwe also claims that commissioners decided to hear the petitions without any deliberations.
The judge now wants the court to suspend the hearing of the petitions.
“Unless restrained by this honourable court, the sixth respondent will proceed to hear and determine the petitions thereby rendering the instant application null and void,” he argues.
He is also seeking to quash all decisions by JSC to summon him and bar it from using the evidence produced by the four.
The case will be mentioned today before Justice Hedwig Ong’undi.
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