Blow to Karua in bid to remove High Court judge

Narc-Kenya party leader Martha Karua has failed in her bid to reverse a decision of the Judicial Service Commission (JSC) to dismiss her petition for removal of a High Court judge from office.

Ms Karua wanted the judicial review division of the High Court to quash a JSC decision to dismiss her complaint against Justice Lucy Gitari over how she handled her election petition challenging Kirinyaga Governor Anne Waiguru’s 2017 election win. She had accused Ms Gitari of incompetence and gross misconduct. 

Her judicial review case against the JSC argued that the judges' employer did not give her a chance to litigate her petition to kick out Justice Gitari before summarily dismissing it.

Now, however, Justice Anthony Ndung’u has dismissed Ms Karua's review case, saying it lacked merit, was misconceived and was an abuse of the court process. 

Justice Ndung’u said there was no evidence that JSC did not follow any procedural rules when dealing with Ms Karua’s complaint.

“The fact that the JSC considered Ms Karua’s petition is testimony, by itself, that she was given an opportunity to present her case before it was dismissed. I am satisfied that the JSC considered Ms Karua’s petition and in the JSC’s opinion, and for reasons which it communicated to her, the petition did not warrant any further action except to dismiss it,” said Justice Ndung’u.

He further observed that it would have been untidy if the JSC was to entertain Ms Karua's petition and purport to deal with the same issues that were alive before the appellate courts over the governorship election case.

Justice Gitari was the presiding judge in an election petition filed by Ms Karua at the High Court in Kerugoya. Ms Karua lost the 2017 election petition and subsequent appeals in the Court of Appeal and the Supreme Court. 

The Supreme Court had dismissed her appeal against the Court of Appeal decision on grounds that time to hear the matter had lapsed, but Ms Karua had argued that time lapsed due to a process beyond her control. She took the case to the East African Court of Justice (EACJ), which awarded her Sh2.7 million as damages for infringement of her right to a fair trial and hearing. 

Electronic evidence 'disappeared'

Her complaint against Justice Gitari, which was the basis of her petition to the JSC for her removal, stemmed from a piece of evidence Ms Karua presented in court in preparation for the hearing of the election petition. 

The evidence, which was described in the affidavit as “electronic evidence”, disappeared while in the court’s custody.

When Justice Gitari was informed about the matter, the judge is said to have assured Ms Karua that an inquiry into the disappearance of the evidence would be made. Despite this assurance, Ms Karua alleged, the judge turned around and held, apparently in her judgment, that Ms Karua did not file the electronic evidence in question.

Apart from the complaint about the electronic evidence, the judge is said to have denied Ms Karua a chance of referring to or relying on forms 37A and B as evidence.

According to Ms Karua, the conduct of the judge smacked of incompetence, corruption or inability to perform her judicial duties.

On March 6, 2020, the complaint was taken to the internal processing channels within the JSC, culminating in the preliminary evaluation.

Aggrieved by the JSC’s decision, Ms Karua moved to court, seeking a declaration that she was entitled to be heard on her complaint by JSC.

But while dismissing the case, Justice Ndung’u said Ms Karua did not demonstrate that the JSC’s decision was tainted.

“Having considered the correspondence between Ms Karua and the JSC culminating in the disputed decision, it has not been demonstrated to my satisfaction that the decision is tainted with illegality, irrationality or procedural impropriety,” said Justice Ndung’u.

“It is worth noting that the JSC’s advice to Ms Karua that her complaint went to the merits of the decision of Justice Gitari and, for that reason, the appropriate forum to dispose of her reservations against the judgment was the appellate court was not far-fetched,” stated Justice Ndung’u.

“She appealed to the Court of Appeal and eventually to the Supreme Court. To a greater degree, the two appellate courts addressed the issues upon which the applicant’s petition to the JSC was founded,” he added.

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