Justice Chitembwe loses bid to bar JSC from probing him

The High Court has again declined a request by Justice Juma Chitembwe to block the Judicial Service Commission (JSC) from investigating him over accusations of bribery and gross misconduct.

The judge had wanted interim orders stopping the JSC, chaired by Chief Justice Martha Koome, from hearing five petitions that are seeking his removal over alleged corruption, gross misconduct and incompetence.

The JSC is scheduled to start hearing the petitions tomorrow (Tuesday February 15) at the JSC offices.

In urging the court to block the inquiry, Judge Chitembwe said he stood to be prejudiced and jeopardised because the matters at the JSC are linked to various pending court cases.

But Justice Hedwig Ong'undi declined the request, saying the disciplinary process at the JSC is not final and can be quashed.

"I find the processes at JSC are not final and can be nullified. It will be prudent to hear all parties in the application before ruling on the conservatory orders sought by the applicant," Justice Ong'undi said.

She directed the parties, including the JSC, Justice Chitembwe and Mr Francis Wambua, to exchange their pleadings ahead of the hearing of the case on March 14.

It was the second time Justice Ong'undi declined to grant conservatory orders stopping the JSC from dealing with the disciplinary case.

On December 9, she declined a similar request. At the time, she said granting the order would stop the JSC from carrying out its lawful mandate without hearing its side of the story.

In his petition, Justice Chitembwe is challenging the use of video and electronic evidence as the basis for his removal from office.

He argues that video recordings, social media posts and phone-call conversations linking him to bribery are illegal evidence that cannot be admitted at the JSC.

The electronic evidence was provided to the JSC by former Nairobi governor Mike Sonko and his aide Francis Wambua.

Mr Sonko also posted the video clips and phone conversations on social media platforms, causing a public uproar.

Justice Chitembwe, in his court papers, says the videos were obtained illegally, and without his knowledge and consent. Hence they cannot form the basis for his removal.

He is apprehensive that the JSC will rely on the recordings when Mr Sonko obtained them in contravention of the Constitution.

“The petitioner is aggrieved that the petitions for his removal from office and the proceedings by the JSC under Article 168(1) & (2) of the Constitution are based on the petitioner’s private conversations obtained without his consent and in violation of his rights to privacy,” he says in the court papers.

The judge is also challenging how the JSC processed three petitions filed by Mr Wambua, Imgrad Beige and David Leboo Ole Kilusu.

He says the foundation of the petitions are disputes that are still pending in court. Judge Chitembwe contends that it was wrong for the JSC to proceed to deal with the petitions when there are substantive appeals pending in the Court of Appeal over the subject matter of the petitions.

For instance, the petition by Mr Wambua and Mr Sonko relates to a case involving the impeachment of the governor and the dispute is before appellate judges.

He explains that the petition filed by Beige and Ole Kilusu arises from his decision in a case that was in the High Court in Malindi involving a succession case. The dispute is pending in the Court of Appeal.

Justice Chitembwe also argues that the processing of the petitions violated the Fair Administrative Action under Article 168(1) and (2) of the Constitution and the principles of a fair hearing.

“All decisions made by JSC in respect of the petitions lodged and the proceedings have been taken without resort to any rules of procedure or practice bearing in mind the JSC’s failure to make regulations for the conduct of its proceedings,” says the judge in the court papers.

He explains that since the Judicial Service Act (2011) was enacted, the JSC has not formulated any procedural regulations for determining petitions for removing judges from office.

“JSC has on several occasions stated that it is not a court of law and is not bound by rules of procedures and will determine how to conduct its proceedings. As a result of this, there is no uniform format for conducting … proceedings, which is against the rules of natural justice,” the judge says.

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