End of the road for former High Court Judge Said Juma Chitembwe as the Supreme Court dismissed his appeal against the finding by a tribunal.
The court upheld the gross misconduct finding by the tribunal, which had been appointed to investigate the former Judge's conduct.
Led by Justice Mohamed Ibrahim, the five-judge bench including Justices Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola and William Ouko, found that Chitembwe had breached the Code of Conduct of Ethics.
"The Tribunal's finding that the Petitioner's conduct was in breach of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 and amounted to gross misconduct contrary to Article 168(1) (b) and (e) of the Constitution is affirmed," the court ruled.
The court further ruled that the tribunal’s recommendation to the President for Chitembwe to be removed from office in line with the Constitution was affirmed.
Chitembwe’s troubles begun in November 2021, when his conduct was put to test after several videos, phone recordings and social media posts by former Nairobi Governor Mike Sonko surfaced.
Following this, the Judicial Service Commissionon November 22, 2021, initiated proceedings for the former judge’s removal and a committee was appointed to look into the allegations and report its findings.
The committee recorded statements from 18 persons to ascertain the allegations against Chitembwe and on November 23, the JSC notified him that it would start the removal proceedings on its own motion.
JSC went on to list the grounds of removal citing impropriety, gross misconduct, and misbehaviour.
Chitembwe did not reply to the letter or a subsequent one send on March 14, 2022, but instead filed a notice of preliminary objection contesting the hearing of the motion arguing that the video clips and audio recordings were inadmissible.
He also argued that the same amounted to illegally obtained evidence.
The objection was however dismissed as the issues raised could only be argued during hearing of the motion proceedings.
The committee would then find that the motion disclosed gross misconduct and breach of the Code of Conduct for judges, to warrant a recommendation to the President to establish a tribunal to investigate Chitembwe’s conduct.
The committee submitted its report to JSC, and a petition was submitted to then President Uhuru Kenyatta to appoint the tribunal.
On May 17, 2022, Uhuru suspended Chitembwe from office and appointed a seven-member tribunal to inquire into the allegations and submit a report and recommendations on the matter.
The tribunal hearing, which was heard in camera – without the presence of the public or media-begun on September 19, 2022, and was concluded on January 25, 2023.
During the period, the tribunal found that the recordings were not obtained in a manner that contravened the Constitution and were therefore admissible.
There were six allegations against Chitembwe including lack of impartiality and non-disclosure of conflict of interest, both contrary to the Constitution and the Code of Conduct and Ethic.
These allegations stemmed from the former judge’s failure to disclose to the Chief Justice or fellow judges that he was related to Sonko through marriage and recuse himself from sitting on proceedings affecting the latter.
After consideration, the allegations were found to have been established to the required standard.
The tribunal also found that the allegations of lack of integrity, lack of accountability, involvement in corrupt practices, and impropriety, subversion of justice through commenting and advising a litigant on matters pending in court, and lack of professionalism and conduct unbecoming of a judge were all proved.
This resulted to the tribunal concluding that Chitembwe’s conduct was in breach of the Code of Conduct and Ethics and amounted to gross.
Accordingly, it recommended to the President that he be removed from office of Judge of the High Court.
Chitembwe was however aggrieved by the decision and in a petition of appeal dated February 15, 2023, he moved to the apex court seeking a declaration that the allegations against him had not been proved to the required standard.
He also sought to have the declaration that his actions amounted to gross misconduct dismissed.
Further, Chitembwe wanted the court to declare that there was no breach of the Constitution and the Code of Conduct and Ethic warranting removal from office.
He argued that his relationship with Sonko was not so close as to warrant him to recuse himself or disclose to the CJ or other judges.
He insisted that the relationship was remote as it was his stepcousin who had married Sonko’s aunt, a union which ended in a divorce.
He went on to state that the judgement to the petition involving Sonko had been upheld by both the Court of Appeal and the Supreme Court, pointing this as an indication that he was not biased.
He also maintained that there was no evidence that he had any dealings with Sonko in regard to sale of a land during the pendency of the consolidated petitions and that the meeting held to discuss the same was purely him being a mediator and advising those present on how the matter could be resolved amicably.
On its part, the tribunal submitted that all allegations before Chitembwe had been proved to the required standards.
Upon deliberating the case, the five-judge bench found that the judge in meeting Sonko whom he had a long-standing relationship with and had a case before him involving the politician, he acted in bad faith.
"In the end and for all the reasons we have given, 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," it said as it dismissed the appeal.