THE SUPREME COURT OF KENYA

(Coram: Mwilu DCJ & V.P, Ibrahim, Ojwang, Njoki & Lenaola SCJJ)

HON. MR. JUSTICE JOSEPH MBALU MUTAVA VS. THE TRIBUNAL APPOINTED TO
INVESTIGATE THE CONDUCT OF JUSTICE JOSEPH MBALU MUTAVA, JUDGE OF THE
HIGH COURT OF KENYA

S.C PET.NO. 15 “B” OF 2016

DATE OF HEARING: 18TH JULY, 2018

DATE OF JUDGMENT: 12TH MARCH, 2019

MEDIA SUMMARY

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The following explanatory note is provided to assist the media in reporting this case and is not binding
on the Supreme Court or any member of the Court.

[1] On 12th March, 2019 the Supreme Court delivered a unanimous judgment dismissing a
petition of appeal by the Petitioner, and upholding the decision of the Tribunal appointed to
investigate his conduct, pursuant to Article 168(5) of the Constitution, which recommended his
removal from office. The Petitioner was appointed a Judge of the High Court of Kenya on 23rd
August, 2011. Between March 2012 and March 2013, several complaints were lodged with the
Judicial Service Commission (“JSC”) against the Petitioner. On 1st December, 2012, the JSC
constituted a Committee to investigate those allegations. After an inquiry, the JSC sent a Petition
to the President, Hon. Uhuru Kenyatta, recommending the suspension of the Petitioner and the
appointment of a Tribunal to investigate the allegations of gross misconduct and misbehaviour
levelled against him.

[2] The Tribunal set up by the President presented to him a detailed report on 20th
September, 2016 where it was of the unanimous view that three of the six allegations against the
Petitioner had been proved to the required standard and that the Petitioner’s conduct amounted to
gross misconduct contrary to Article 168(1)(e) of the Constitution. Consequently, it
recommended that the Petitioner ought to be removed from office. These were that: the
Petitioner irregularly, inappropriately and knowingly in collusion with other parties caused
Nairobi High Court Misc. (JR) Application No 305 of 2012 Republic v. The Attorney General
and 3 Others, Ex parte Kamlesh Mansukhlal Damji Pattni to be allocated to himself and without
the knowledge and consent of the Duty Judge and the Presiding Judge of the Judicial Review
Division; the Petitioner proceeded to write a Judgement in respect of Nairobi High Court Misc.
(JR) Application No 305 of 2012 Republic v. The Attorney General and 3 Others, Ex parte
Kamlesh Mansukhlal Damji Pattni at a time when the Judicial Service Commission was
inquiring into allegations of misconduct against him with regard to the same matter; and the
Petitioner sought to influence the Ruling in the case of Nairobi HCCC No 705 of 2009, Sehit
Investments Ltd v. Josephine Akoth Onyango & 3 Others in favour of the Plaintiff therein
through oral and text messages from his cell phone to Hon. Mr. Justice Leonard Njagi who was
presiding over the hearing of that matter.

[3] Aggrieved by the Tribunal’s findings, the Petitioner filed an appeal before this Court. In
undertaking the determination of the issues raised by the Petitioner, the Court recognised the fact
that this is the first time its jurisdiction under Article 168(8) of the Constitution has been invoked
and acting as the first and only appellate Court, its mandate is more expansive in establishing
whether the Tribunal misdirected itself and whether the Tribunal’s conclusion should stand.

[4] Upon consideration, we have come to the decision that the findings and
recommendations of the Respondent to the President, that the Petitioner be removed must be
upheld for the reasons set out below. The Petitioner contended that the appointment of two
additional members of the Tribunal after the expiry of 14 days of the receipt of the Petition from
the JSC was in contravention of Article 168(5) (b) of the Constitution and the composition and
constitution of the Tribunal was therefore unconstitutional and its entire proceedings and
recommendation is null and void. We have declined to assume jurisdiction to determine the
constitutionality of the Tribunal since this question was conclusively determined by the Court of
Appeal. As such, the Petitioner’s prayer in this regard is dismissed. Further, we agree with the
Tribunal that its jurisdiction was not affected by the subsequent withdrawal of some individual
complaints. The Tribunal was constitutionally bound to investigate the complaints against the
Judge and present its recommendation to the President.

[5] The Petitioner also prayed for a declaration that the complaints in respect of two
allegations did not follow the mandatory procedure and the Respondent therefore erred in
considering and making adverse recommendations based on these allegations. Article 168 (2)
and (3) provides that the removal of a Judge may be initiated only by the JSC acting on its own
motion or on the petition of any person to the JSC and that a petition by a person to the JSC
should set out in writing the alleged facts constituting the grounds for the removal of the Judge.
We do not understand on what basis the Petitioner seeks this prayer since he has not expounded
on how those provisions were breached. The same is therefore dismissed.

[6] The Petitioner also sought a declaration that the findings of the Tribunal to the effect that
the conduct of the Petitioner amounted to gross misconduct were not supported by any evidence
on record and are therefore unfounded and bad in law. We have reviewed and analysed all three
allegations that led to a finding of gross misconduct on the Petitioner and on two of those
allegations we have affirmed the Tribunal’s finding.

[7] Lastly the Petitioner sought a declaration that the Respondent acted in violation of the
requirements of the Constitution, the Evidence Act and the Judicial Service Act. After analysing
the relevant facts on record, we confirmed that the Tribunal acted within the expected limits of
natural justice and fair hearing. We have also affirmed that the correct standard of proof remains
that of below beyond reasonable doubt but higher than a balance of probability and that the
Tribunal applied the correct rules of evidence as provided in the second schedule to the Judicial
Service Act with regard to how evidence before the Tribunal ought to be adduced and who bears
the burden of producing such evidence.

[8] Our orders are:

(a) The Petition of Appeal dated 29th September, 2016 is hereby dismissed.

(b) The Tribunal’s finding with regard to allegations one and five is hereby
affirmed. Consequently, we hold that the Petitioner’s conduct amounted to
gross misconduct contrary to Article 168(1)(e) of the Constitution.

(c) For avoidance of doubt, the Tribunal’s recommendation to the President for the
Petitioner’s removal from office under Article 168(7)(b) of the Constitution is
also affirmed.

(d) No orders as to costs.