Said Juma Chitembwe will never be cleared for appointment as a judge, nor will he ever be appointed to a State office in Kenya.
That, in a nutshell, was the implication of the December 28, 2023 ruling by the Supreme Court, where the former High Court judge had taken his appeal after a tribunal found him guilty of corruption and recommended his sacking.
Chitembwe, who had until then been in the legal practice for 32 years, ceased to be a judge after he was found guilty of engaging in corrupt dealings with litigants. He was also barred from holding any public office.
This is with respect to the Kenyan constitution, Chapter Six Article 75 (3), which states; A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clause (2) is disqualified from holding any other State office.
In its decision, the Supreme Court in a unanimous judgment, rejected Chitembwe’s appeal against the findings of a tribunal appointed by retired President Uhuru Kenyatta in May 2022. The tribunal chaired by Justice Ngugi had recommended Chitembwe’s removal from office on grounds of gross misconduct.
The five-judge bench, which comprised Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko ruled that Chitembwe had breached the Code of Conduct and Ethics and thereby not suitable to continue serving as a judge.
“This Petition of Appeal fails as we are satisfied with the Tribunal’s conclusion that the evidence presented established that the petitioner’s conduct was in breach of the Code of Conduct and Ethics and also amounted to gross misconduct or misbehaviour contrary to Article 168(1) (b) and (e) of the Constitution,” The judges of the apex court ruled while upholding Chitembwe removal as a judge in February last year.
This followed a recommendation by the Judicial Service Commission (JSC) led by Chief Justice martha Koome that Justice Chitembwe be removed from office over leaked videos, social media posts, and audio cell phone recordings by former Nairobi Governor Mike ‘Sonko that depicted him in a scheme to compromise an active court cases.
In the recordings Chitembwe was exposed discussing with persons, including, Sonko, the sale of property number Kwale/Galu/Kinondo/779 (parcel no. 779) which had been the subject of a succession cause H.C Succ. Cause Malindi No. 97 of 2015, In the Matter of the Estate of Peter Werner (Deceased) over which he had presided as a Judge.
Among the things discussed was the possible withdrawal of an appeal, Malindi Civil Appeal No. 32 of 2018, Pacific Frontiers Seas Limited versus Jane Mutulu Kyengo and Another, that had been lodged against his decision in the said succession case.
In other video and audio recordings, Chitembwe is presented discussing yet another matter with Sonko, in which the former governor was the petitioner where he had sued former Clerk of Nairobi City County Assembly and nine others
Sonko alleged that some city lawyers received over Sh 315 million to compromise his impeachment process.
In the amateur videos released by Sonko, a man purported to be Judge Chitembwe was seen receiving a bag full of money from a lawyer for the purpose of defeating justice.
Dubbed “The Rot in the Kenyan Judiciary” the first episode of a five-part series shows the events leading to Sonko’s impeachment and Chitembwe’s alleged involvement in fraudulent dealings in his chambers.
The petitioner claimed Chitembwe had been approached by a lawyer and Nairobi County Assembly majority leader Abdi Guyo asking him to rule against Sonko.
The judge allegedly requested the lawyer to make arrangements for him to meet retired President Uhuru Kenyatta to give his nod to impeaching Sonko.
The lawyer allegedly confirmed that the State House wanted the governor out of office.
It is said that the lawyer was acting at the behest of Nairobi City County MCAs and a county executive committee member in a desperate bid to have his legal fees paid.
Guyo and the lawyer reportedly visited judge Chitembwe at his residence in Mountain View Estate.
In its decision ,the Apex court ruled that the evidence, which included covertly recorded video and audio recordings, confirmed Chitembwe’s misconduct.
The Supreme Court bench comprising of justices further stated that the audio and video recordings presented as evidence against Chitembwe did not violate his right to privacy as he had argued.
“On the allegation of entrapment, the Court finds that the recordings were procured by the petitioner’s relatives and acquaintances, and even in the absence of the recordings, there was independent and direct evidence of persons who were present and participated fully in the recorded conversation,” the Supreme Court bench said.
“Those present testified as to who they were and what their engagements were in different sectors of the economy. None of them was a government agent or an enforcement officer and therefore the allegation lacked basis.”
These recordings surfaced when Chitembwe was serving as a judge of the Civil Division in Nairobi in November, 2021.
Following the leaked videos, four petitions were filed by former Nairobi Governor Sonko, Francis Wambua, Imgrad Geige and David Leboo Ole Kilusu seeking the removal of the Judge from office.
The petitioners accused the judge of being involved in bribery in land disputes that he handled.
While confirming that allegations of corruption against Chitembwe were proved by the petitioners, the Judges noted “his conduct, apart from being unprofessional was also unbecoming of a judge and contravened Articles 73 of the Constitution as well as Regulations 15, 16(a), (b), (c) and 17(3) of the Code of Conduct and Ethics.”
“Consequently, like the Tribunal we find that the petitioner’s conduct amounted to a lack of accountability, involvement in corrupt practices, and impropriety contrary to Articles 10, 73, and 75 of the Constitution, and Regulations 13(1)(a), 14(1)(a), 14(1)(b), 14(3), and 30 of the Code of Conduct and Ethics,” the supreme court ruled
“We also find that Chitembwe was engaged in the subversion of justice by commenting on pending cases and suggesting to a litigant, possible points for the challenge of the judgment arising from the consolidated petitions contrary to Article 75(c) of the Constitution, and Regulation 18 of the Code of Conduct and Ethics,”
The Apex court stated that it was wrongful for judge Chitembwe to comment on proceedings pending in any court as he did.
“The evidence before us and as captured in the Hansard of November 4, 2021, is that Chitembwe admitted that he discussed with Hon. Sonko possible grounds of appeal against the judgment in the consolidated petitions(Impeachment proceedings), being the grounds in the petition. In our view, such advice, from a judge to a person who was a litigant before him in the matter, the subject of discussion and in respect of which an appeal to the Court of Appeal was contemplated, is what is prohibited by Regulations 17(3) and 18(1) of the Code of Conduct and Ethics,” the judges stated.
“Ultimately, we find that Chitembwe was engaged in the subversion of justice by commenting on pending cases and suggesting to a litigant, possible points for the challenge of the judgment arising from the consolidated petitions contrary to Article 75(c) of the Constitution,” they added.
The five judges of the apex court ruled that the evidence presented before the court confirmed Chitembwe’s conduct as a violation of the Code of Conduct and Ethics, constituting gross misconduct and misbehaviour.
“The Court found that there was no basis upon which to conclude that the JSC violated the petitioner’s right to fair administrative action, nor did the Tribunal, for rejecting the invitation to interrogate the proceedings before the JSC, for which it had no powers,” ruled the Supreme Court bench.
“The Court cannot find fault in the Tribunal’s conclusion that the petitioner’s conduct divested him of any claim to protection under the principles of judicial immunity. Judicial immunity will only be available for actions or omissions of a judge done or omitted to be done in good faith and in the lawful performance of a judicial function.”
While uphold the tribunal finding that ruling, the Supreme Court sounded what appeared like a warning to state officers stating that they should respect the law, specifically chapter six of the constitution.
The Supreme court held that Judges are entrusted with a significant responsibility to uphold the principles of justice and maintain the integrity of the judicial and legal system.
“In their everyday lives, public or private, judges are expected to exhibit the highest standards of impartiality, fairness, and ethical behavior. They must remain unbiased and refrain from any actions or expressions that may compromise their objectivity. They must display a demeanor that commands respect and instills public confidence in the office of a judge,” the Judges ruled.
The court held that transparency, diligence, and a commitment to upholding the rule of law are paramount in guiding judges in the proper conduct of their duties and fostering public trust in the legal system they represent.
“Maintaining independence from external influences is crucial to ensuring the credibility of the judiciary, and judges are obligated to resist any attempts at undue influence or interference,” the five judges of the apex court said
The decision underscores the judiciary’s commitment to uphold the law and its procedures, particularly in matters involving accusations of corruption within its own ranks.
