JSC wants court to dismiss petition by suspended Judge

Milimani Law Courts in Nairobi. Judicial Service Commission has asked High Court to dismiss the petition by suspended Judge Joseph Mutava who is challenging the appointment of a tribunal to investigate him. Photo/FILE  NATION MEDIA GROUP

By GALGALLO FAYO

In Summary

• Judicial Service Commission (JSC) has asked High Court to dismiss the petition by suspended Judge Joseph Mutava who is challenging the appointment of a tribunal to investigate him
• JSC in response filed in Court on Monday said the process leading to its recommendation on appointment of the investigations of the tribunal was handled according to the provision of the law

Judicial Service Commission has asked High Court to dismiss the petition by suspended Judge Joseph Mutava who is challenging the appointment of a tribunal to investigate him.

JSC in response filed in Court on Monday said the process leading to its recommendation on appointment of the investigations of the tribunal was handled according to the provision of the law.

Justice Mutava moved to court to contest a decision by President Uhuru Kenyatta to appoint a tribunal to look into his conduct in line with recommendations by Judiciary Service Commission (JSC).

JSC was investigating the judge on the basis of three of the nine complaints that the Law Society of Kenya (LSK) had filed against him, following a ruling terminating the Sh5.8 billion Goldenberg scandal case against businessman Kamlesh Pattni.

“The petitioner has not demonstrated how the tribunal as constituted will violate his rights and it is premature and speculative for the petitioner to allege violation of his constitutional rights,” says JSC in an affidavit sworn by its registrar Winfrida Mokaya.

The position of JSC is supported by Attorney General who in his response asked the court to dismiss the suit arguing that all the issues raised can be ventilated before the tribunal.

He further alleges that his advocate was not allowed to cross-examine any of the witnesses who testified before the JSC committee, thus the committee made recommendations on the basis of untested evidence.

But JSC said its work is not to delve into the details of the matter and allowing Justice Mutava to interview the witnesses is usurping the powers of the tribunal.

Further the commission Chief Justice has no power to reinstate the suspended Judge arguing that such move can only happen after tribunal has made its determination.

“Once JSC made its recommendation to the president to appoint a tribunal to inquire into the conduct of the petitioner, his reinstatement or removal has to await the determination of the tribunal,” says JSC.

JSC clarified that it lacks power to remove a Judge but its works is just to recommend to president to appoint tribunal to investigate the allegations.

Justice Mutava was suspended in May. The JSC sub-committee that investigated him asked the President to appoint the tribunal.

LSK filed the complaint against Justice Mutava in the judgment dated March 20.

The judge declared his readiness to face public backlash elicited by his controversial judgment.

Mr Pattni moved to the High Court in August last year seeking to quash criminal proceedings at the magistrate’s court and stop the State from further criminal prosecution on the scandal estimated to have cost Kenya billions of shillings.