The Judicial Service Commission (JSC) will not punish a judge accused of arbitrarily ruling in favour of Goldenberg scandal mastermind Kamlesh Pattni.
The commission’s sub-committee headed by Supreme Court judge Smokin Wanjala ruled that there was insufficient evidence to warrant disciplinary proceedings against High Court judge Joseph Mutava.
Justice Mutava caused an uproar two weeks ago when he acquitted Mr Pattni of all charges related to the multi-billion-shilling Goldenberg scandal on the grounds that he would not get a fair trial because the case had dragged for two decades.
The orders also restrained police from arresting or prosecuting the businessman.
Since February last year at least five complaints by the Law Society of Kenya (LSK), Kenya Airports Authority (KAA), individual lawyers, a judge and a civil society group have been filed against the judge. All the complainants alleged the judge was assisting Mr Pattni to cheat justice.
Justice Mutava was also accused of leaking a judgment by Mr Justice Leonard Njagi. It was not immediately clear yesterday why the JSC had delayed releasing its decision.
LSK chairman Eric Mutua said he was shocked by the decision, but declined to comment further.
“We must first be supplied with the full decision of the committee to make a comment. As far as the LSK is concerned, a tribunal should be formed to investigate the conduct of Justice Mutava,” said Mr Mutua.
The three-member sub-committee of Justice Wanjala, Chief Registrar of the Judiciary Gladys Shollei and the Rev Samuel Kobia had recalled all files relating to Mr Pattni’s cases handled by Justice Mutava to allow it to conduct investigations into the petition lodged by the LSK, KAA and International Center for Policy and Conflict (ICPC).
Sources within the Judiciary told the Saturday Nation that the committee first retreated to Naivasha in December last year to discuss the allegations but did not return a verdict.
The team met again last week and resolved there were insufficient grounds to form a tribunal to investigate the conduct of the judge, who was appointed in 2011 from the Central Bank where he was a legal officer.
Efforts to get a comment from Mrs Shollei were unsuccessful. Her phone was unanswered.
The KAA petitioned the JSC to investigate the judge over a ruling in a case between it and World Duty Free, a company associated with Mr Pattni.
It alleged that he acted in a biased and unprofessional manner when he issued orders that effectively gave Mr Pattni control of duty free shops at all airports in the country.
The KAA also complained about a decision by Justice Mutava to cite the company’s top officials for disobeying court orders.
The judge had ruled that KAA managing director and company secretary were in contempt of court and were liable to six months imprisonment, but the authority disputed the ruling claiming the case was not listed for hearing on the date they were alleged to be in contempt.
However, a civil society group, Concerned Citizens of Kenya, opposed the move to investigate the conduct of the judge and filed an affidavit at the Court of Appeal in support of Justice Mutava and Mr Pattni.
The group claims that ICPC’s complaints against Justice Mutava were part of an extortionist scheme to intimidate the Judiciary and deny Mr Pattni justice.
“The complaint by ICPC to the Judiciary and efforts to remove Justice Mutava is part and parcel of an extortionist scheme to intimidate the Judiciary in respect of Mr Pattni’s matters which, if successful, will mean Mr Pattni will not be entitled to justice,” swore Mr Bradley Ouna, executive director of the group.
Another complaint against Justice Mutava was that he interfered with the judgment of Justice Njagi, who has since been found by the Judges and Magistrates Vetting Board to be unfit to continue serving in the Judiciary.
Justice Njagi swore an affidavit to support the allegations but the JSC sub-committee ruled it lacked sufficient evidence.
Justice Mutava’s ruling last month which terminated criminal cases against Mr Pattni in relation to the Goldenberg scandal raised further questions over his conduct.
The LSK questioned the circumstances under which he was allowed to continue hearing the case and deliver the judgment at a time when he was being investigated over his handling of Mr Pattni’s cases.
“All the files relating to Mr Pattni cases were recalled by the Judicial Service Commission when these complaints were lodged. We are wondering when they were released to the judge again for him to write the judgment,” said LSK secretary Apollo Mboya in their complaint.
Lawyer Nelson Havi, acting on behalf of the ICPC, lodged a similar complaint with the JSC, claiming that it was a big drawback in the fight against corruption.
ICPC went ahead to file a notice of appeal against Mr Pattni’s acquittal at the Court of Appeal but has received opposition from the Director of Public Prosecutions, who wants the notice struck out on the grounds that the lawyer was trying to usurp the DPP’s powers.
The DPP submitted that it is only his office which has the constitutional mandate to file a criminal appeal on behalf of the public, and that he had already filed a notice of appeal against Mr Pattni’s acquittal.