Supreme Court rejects judge Chitembwe's appeal challenging recommendation for his removal

The Supreme Court has thrown out a petition filed by suspended High Court Judge Juma Chitembwe contesting a tribunal recommendation for his removal from office over gross misconduct.

Chitembwe, through his lawyer, filed the petition on grounds that the Tribunal lacked jurisdiction to review the Judicial Service Commission's(JSC) proceedings and that it had not upheld the doctrine of judicial independence while investigating the allegations against him.

Additionally, the suspended judge argued that electronic evidence admitted by the Tribunal was obtained unlawfully and that the accusations levelled against him had not been sufficiently proven before the Tribunal made its recommendations.

While issuing the verdict on Thursday, the five-member Supreme Court bench 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."

The Supreme Court bench 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 found 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."

Former President Uhuru Kenyatta suspended Chitembwe in May 2022 and formed a Tribunal to investigate his alleged misconduct.

The Tribunal, chaired by Justice Ngugi, comprised; Senior Counsel Dr. Fred N. Ojiambo, Lady Justice Abida Ali Aroni, Justice Nzioki wa Makau, Mr. James Ochieng’ Oduol, Lt. Gen. (Rtd.) Jackson W. Ndung’u and Dr. Lydia Nzomo.

Prior to this, four petitions had been filed by former Nairobi Governor Mike 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.

The Tribunal presented their findings to President William Ruto on February 7, 2023, with Justice Ngugi stating that: “The tribunal unanimously found judge Chitembwe breached the Constitution while discharging his duties.”

President Ruto thanked the tribunal for expediting its work, vowing to act on its recommendations.