When Said Juma Chitembwe and Abida Ali-Aroni were appointed High Court judges by President Mwai Kibaki, little did they know that one of them would be involved in deciding the fate of the other’s career 13 years later.
The two joined the Judiciary on April 2, 2009 from private practice in a process that had threatened the fragile grand coalition government.
Other judges appointed at the time were Florence Nyaguthii Muchemi, Maureen Akinyi Odero and Aggrey Muchelule.
The latter is also not new to controversy as he is at the centre of a bribery allegation storm.
His elevation to the Appellate Court has been blocked by President Uhuru Kenyatta.
The swearing-in of the five, together with Court of Appeal judges Alnasir Visram and Joseph Nyamu (both retired), at State House was snubbed by Justice and Constitutional Affairs Minister Martha Karua, who said she was not aware of the appointments.
Justice Abida Ali-Aroni is among the seven members of a tribunal formed by President Uhuru Kenyatta to look into claims of misconduct levelled against Justice Chitembwe by the Judicial Service Commission (JSC).
She also served as the chairperson of the Constitution of Kenya Review Commission.
Members of the tribunal that is chaired by Court of Appeal judge Mumbi Ngugi have been sworn in, setting the stage for a second round of a battle of survival for suspended Justice Chitembwe.
Eight months after joining the Judiciary, the judge was arrested in Mombasa over abuse of office claims.
He was flown from Nairobi to face charges of corruption in relation to the sale of National Social Security Fund land in Nairobi.
Other members of the tribunal are Senior Counsel Fred Ojiambo, Justice Nzioki wa Makau, lawyer James Ochieng Oduol, retired Lt-Gen Jackson Ndung’u and former Teachers Service Commission chairperson Lydia Nzomo.
The team, whose lead counsel is Mr Kiragu Kimani, has since retreated to develop the rules and schedule of its sittings.
Chief Justice Martha Koome urged the tribunal to undertake the duty in a manner that would bring honour to the Judiciary and country at large.
Among the people expected to be summoned by the tribunal is former Nairobi Governor Mike Sonko, who triggered the events last year after leaking clips of the judge reportedly promising to compromise an active court case.
The tribunal will consider the petition for the dismissal of Justice Chitembwe. It will have a chance to re-evaluate the evidence that informed the decision of the JSC and recommend his dismissal or reinstatement.
Recommendations of the tribunal to the President are binding.
The law allows Justice Chitembwe to file an appeal to the Supreme Court within 10 days after the tribunal makes its recommendations.
Should he fail to do so, the President will act in accordance with the recommendations of the tribunal.
Justice Chitembwe was among those interviewed for the position of Chief Justice last year.
He faced several charges, including participating in a TV interview during which he said the former Nairobi county boss was his relative.
Mr Sonko was one of the parties in an impeachment petition that Mr Chitembwe was the presiding judge.
The other judges were Weldon Korir and Wilfrida Okwany. They dismissed the petition in a unanimous decision.
He is also accused of admitting to being related to one Amana Jirani, who was his proxy in the acquisition of a piece of land in Kwale. The plot was at the centre of a succession row in court.
Justice Chitembwe was the presiding judge in the case but failed to disclose his interest in the property.
According to the JSC, Justice Chitembwe held several meetings with Mr Sonko, Mr Jimmy Askar and Mr Said Mwajirani in which they discussed the sale of the land.
Mr Sonko said the case against his impeachment was dismissed as a result of the Kwale land row.
Mr Chitembwe is the eighth judge under the country’s current Constitution to be subjected to a tribunal.
Others who have faced the same fate are former Deputy Chief Justice Nancy Barasa, retired Supreme Court judges Jackton Ojwang and Philip Tunoi and High Court Judges Joseph Mutava, Martin Muya, Lucy Waithaka and Labour Relations Court Judge Njagi Marete.
The tribunal formed to investigate the conduct of Justice Waithaka was suspended by the Court of Appeal in June 2020 pending the determination of her case challenging it.
The tribunal was appointed on June 4, 2019.
She was suspended after being accused of issuing conflicting judgments over the same matter in Kericho in 2014.
The judge was suspended alongside Justices Marete and Muya.
The tribunal appointed by President Kenyatta to investigate the three judges was chaired by retired judge Alnasir Visram.
Justice Marete was reinstated as Labour Court judge in September 2020 when the tribunal dismissed misconduct allegations against him.