Suspended High Court judge Said Chitembwe has 10 days from today, to challenge his removal from the Judiciary as recommended by a tribunal appointed to probe his conduct.
The constitution allows a judge recommended for removal to challenge the decision of the tribunal at the Supreme Court, failure to which the President will act on the recommendation and strike out his name from the list of judges.
A 12-member tribunal appointed by from President Uhuru Kenyatta last May ruled in a 262-page report that Justice Chitembwe showed a lack of professionalism and his conduct was unbecoming of a judge in contravention of Articles 73 of the constitution as well as code of conduct and ethics.
The grounds for the removal of a judge include the inability to perform the functions of office arising from mental or physical incapacity, breach of a code of conduct prescribed for judges, bankruptcy, incompetence or gross misconduct or misbehaviour.
The tribunal chaired by Court of Appeal judge Mumbi Ngugi found that six allegations against Justice Chitembwe were proved, among them advising litigants to withdraw a case that was pending in court and advising former Nairobi governor Mike Sonko to challenge his ouster.
“The Tribunal finds, therefore, that the Judge was engaged in the subversion of justice through commenting and advising a litigant on matters pending in court contrary to Article 75(c) of the Constitution, and Regulation 18 of the Code of Conduct and Ethics,” the Tribunal said.
The tribunal found that the judge advised Mr Sonko on points that will help him in the appeal, challenging his removal as the city-county boss. Mr Sonko was removed by the MCAs and the decision was rubber-stamped by the Senate.
He challenged his removal before the High Court and the matter was heard all the way to the Supreme Court.
Mr Sonko had accused the judicial officer of advising him that the judgement, which upheld his removal as the Nairobi county boss, should be set aside because there was coercion, bribery and fraud.
“Further, the Judge, by his own testimony, freely admitted that he discussed and outlined to Hon. Sonko what to raise in the appeal,” the Tribunal said.
The judge was arrested in 2021 following a set-up and was found with Sh770,000 in US currency but was later released after being held for a while at the DCI headquarters.
The judge later claimed that he intended to wire the money to his son, who was studying at the Edith Cowan University in Perth, Australia.
The tribunal noted that the Judge was aware that he was related to Mr Sonko through marriage and had ongoing dealings with him over the sale of a parcel of land in Kindondo, Kwale County but never disclosed to fellow judges and the parties when he handled several petitions touching on Mr Sonko.
Another complaint was filed by Mr Francis Wambua claiming the judge has involved himself in various acts of gross judicial misconduct, including discussing the merits of a matter pending in court, with third parties.
He said Justice Chitembwe was captured discussing a matter pending before him, with third parties and rendering judgements based on other influences including bribery.
Mr Wambua said the judge lacks the integrity to continue holding office because he has breached the constitutional provisions on integrity and the judges’ code of conduct.
“The Tribunal finds that the breach by the Judge of these constitutional provisions and the Code of Conduct regulations amount to gross misconduct and misbehaviour under Article 168(1)(e) of the Constitution,” the tribunal said.