A tribunal formed to investigate the conduct of High Court Judge Lucy Njoki Waithaka has requested her lawyer to get instructions on whether the hearing should proceed in public or private.
The tribunal chaired by Court of Appeal judge Alnashir Visram also indicated that the hearing will commence on November 4, and they expect to finalise and submit a report to the President by November 22.
Justice Waithaka of the Environment and Lands Court, a division of the High Court, is accused of issuing two conflicting judgments over the same matter.
“Deciding whether the hearings should be public or private, is her prerogative and the tribunal will respect her wish,” Justice Visram said yesterday.
Lawyer Tom Macharia for Justice Waithaka has already been served with a summary of the allegations. The chair of the tribunal directed that she be served with witness statements by October 19, so that she has adequate time to prepare her defence.
“If this is not done, it will have an impact on the hearing dates,” added the tribunal chair.
Mr Macharia said they would decide on the witnesses to call after receiving all the documents being relied on against the judge by the state counsels.
The other members of the tribunal are retired Appellate judge Festus Azangalala, Ambrose Weda, Mr Andrew Bahati Mwamuye, Senior Counsel Lucy Kambuni, Ms Sylvia Wanjiku Muchiri and Ms Amina Abdalla.
In May this year, the tribunal cleared Supreme Court Judge Jackton Ojwang’ of any wrongdoing, while at the same time making critical observations regarding the manner JSC reached a conclusion that a recommendation be made to President Uhuru Kenyatta for the appointment of a tribunal to investigate the top judge.
They said that on evaluation of the evidence, “we find that there was insufficient basis for asking the President to form a Tribunal to inquire into the conduct of the judge.”
“This then leads us to the conclusion that there is need to establish a procedural threshold applicable by the JSC. This would include tests and standards that ought to be met at every stage of processing a petition before a recommendation to the President is made,” reads the judgment on May 8, 2019.
The tribunal also found that the JSC must act expeditiously. This requirement must of necessity, be read together with the requirement for efficiency in the conduct of administrative functions.
This is to ensure that there is no undue prejudice suffered by the judge and it is also in the public interest.