Mutava: Shortest-serving judge didn’t shy away from controversy

A tribunal looking into the misconduct of a judge who handled the multi-billion- shilling Goldenberg scandal has finally sealed his fate.

The team headed by Justice David Maraga of the Court of Appeal recommended on Wednesday that President Uhuru Kenyatta sack Joseph Mbalu Mutava as a judge of the High Court.

“After listening to the evidence and all the counsel, this tribunal found that allegations number one, three and five were proved and pursuant to the provisions of Article 168 of the Constitution the tribunal has recommended that the honourable judge be removed from office,” he said.

The father of two sons can now only be saved by the Supreme Court to which he yesterday vowed to appeal.
Wednesday’s unanimous decision brings to an end a three-year struggle by Justice Mutava trying to absolve himself of the allegations of misconduct that plagued him while trying to salvage his space on the Bench.

All through, he has maintained that his removal from office was orchestrated by the Law Society of Kenya and the International Centre for Policy and Conflict (ICPC).

About 29 people, including his wife, Kibwezi East MP Jessica Mbalu, appeared before the tribunal to give evidence.
Of the six allegations that plagued the judge, two were directly related to his involvement with the Goldenberg cases.

When he appeared before the tribunal for his defence, the tough-looking judge was adamant that none of the evidence tabled before the commission had reached the required threshold of proof.

The tribunal, which also included Mr Omesh Kapila, Justice Maureen Odero, Prof Patricia Mbote, Ms Jedidah Ntoyai and Mr Lawrence Mute, in its findings concluded that the judge had colluded with others to allocate himself a court case file without the knowledge of the duty judge and proceeded to write a judgment for a case in which he was being investigated.

They also determined that he had sought to influence the outcome of a case, but were however unable to prove that he had solicited a Sh2.5 million bribe.
Mrs Rose Mbithe, a director of Sehit Investments Ltd, accused the judge of asking for the bribe on behalf of his colleague Justice Leonard Njagi, who was to deliver a ruling in a case in which her firm was a party.

Her property was to be auctioned by the Kenya Commercial Bank after an alleged non-payment of a Sh11 million loan.
She said she had met Justice Mutava after being introduced to him by his wife.

Ms Mbithe later appeared before the tribunal to recant her statement, saying ‘she was not thinking’ when she made the accusation.
Mr Mutava’s exit marks one of the shortest careers of a sitting judge within the country’s corridors of justice having been placed on the chopping board by his own employer, the Judicial Service Commission (JSC).

He now joins other public officers who have in the last two decades lost their jobs over the biggest corruption scandal in the country.
The scandal dates back to 1990 when Mr Pattni incorporated Goldenberg International Limited, which claimed to have been engaged in gold and jewellery exports.

The Treasury paid the company Sh5.8 billion in compensation for the alleged exports, which was faulted as illegal, irregular and in some instances, non-existent.
Justice Mutava was an active member of the LSK before being appointed a judge in August 2011 and posted in the commercial division of the High Court.
While not actively practising he held the position of Assistant Legal Secretary at the Central Bank of Kenya.

Barely a year after taking up the gavel and judicial robes, the JSC began receiving complaints of misconduct during his short stay at the Millimani Law Courts in Nairobi.
A subcommittee of the JSC headed by Supreme Court Judge Smokin Wanjala was formed to look into the 11 allegations that the young judge faced. In May 2013, the JSC recommended to the president that a tribunal be formed to further investigate him as there was enough evidence for three of the allegations.

Moved to court

Following this recommendation, the president suspended the High Court judge (who had already been transferred out of Nairobi) and appointed the tribunal to look into the misconduct.
Justice Mutava moved to court to contest the appointment of a tribunal based on the JSC recommendations and sought to be allowed to resume his official duties at the Kericho station where he had been moved by former chief justice Willy Mutunga.
Perhaps the learned judge’s biggest mistake was getting involved and exonerating controversial businessman Kamlesh Pattni, believed to be the mastermind of the scandal, and absolving all firms associated with him in his March 20, 2013 ruling.

The judge also issued orders against the Director of Public Prosecutions, the Attorney-General (AG) and the Commissioner of Police stopping them from pursuing criminal charges against Mr Pattni who in one of the cases was accused of conspiracy to defraud the government of Sh5.8 billion.

The judge also observed that the report by Commission of Inquiry chaired by former Court of Appeal judge Samuel Bosire on the scandal on which the existing criminal case was anchored was flawed and that most witnesses had died or their memories had faded.

Justice Mutava’s basis for the ruling: the cases had dragged on in court for long violating Mr Pattni’s constitutional rights adding that the businessman was not likely to get justice if the same prevailed.

Aside from the Goldenberg scandal, the judge also faced some heat over a commercial case he handled involving the East African Portland Cement Company.
He faced a complaint by the Ministry of Industrialisation over the manner in which he handled the dispute.
The judge was alleged to have met all the directors of the firm prior to making his ruling where he reinstated ousted officials including managing director Kephar Tande and the entire board of directors.

The then Minister of Industrialisation Amason Kingi had removed the board and its directors over tender row.
In May 2012 Justice Mutava granted former president Moi’s son Philip his voluntary bankruptcy plea issuing orders against the sale of his assets and shielding him from paying his wife Rossana Pluda large sums of money for upkeep.

During his tenure at Milimani commercial division he stopped the over 900 former Telkom Kenya employees from winding up the company over a Sh3 billion terminal benefits claim arising from their retrenchment in 2006.

While the judge is by law allowed to appeal the decision of the tribunal in the highest court of the land within 10 days, the fact that the Supreme Court Bench is not properly constituted might be a hindrance.

There recruitment of Chief Justice, Deputy Chief Justice and Supreme Court Judge is yet to be concluded and the judges installed in office.
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