Justice Mutava lawyer Philip Nyachoti leaving the court.
BY SAM ALFAN
The appellate court five judge bench of the court of appeal will deliver its verdict in March the judgment as to whether the suspended judge justice suspension was a violation of his rights and if the tribunal formed to investigate him was constituted lawfully.
This is after Judicial Service Commission moved to the Court of appeal to overturn the high court judgment which saw him re-instated.
Mutava’s lawyer Philip Nyachoti argued that the formation of the tribunal after the recommendations by JSC was malicious because his client was not accorded an opportunity to defend himself before the commission.
Mutava accused the JSC of bias, claiming that his lawyers were not allowed to cross-examine witnesses during the proceedings that led to the recommendations to form the tribunal.
Judge Joseph Mutava was reinstated after High Court ruled that the JSC recommendation to suspend him was a violation of his rights to a fair trial.
A three-judge bench also said the President’s move to appoint five members of the tribunal in the case was unconstitutional.
Justice Joseph Mutava got his job back after the court declared a decision by the President to suspend him as illegal and ordered that he resumes duties as a judge of the High Court.
The judges declared the tribunal formed by President Kenyatta as irregular and unconstitutional because it does not meet the mandatory requirements of the Constitution.
The high court has annulled the tribunal that was formed by the Judicial Service Commission to investigate Justice Joseph Mutava over claims of malpractices.
The three judge bench while delivering its judgment also ordered the JSC to start investigating complaints leveled against Mutava afresh but within the confines of the constitution.
Justice George Odunga, lady justice Mumbi Ngugi and Pauline Nyamweya ruled that the tribunal that was formed by the president to investigate Justice Joseph Mutava over malpractices was unconstitutional because it was formed after 31 days instead of 14 days as the law stipulates.
While delivering the ruling on behalf of other judges, justice Odunga said that judge Mutava was not furnished with reasons as to why he was to be investigated. He further said the Judicial Service Commission JSC was influenced by external forces to probe Mutava .
Justice Mutava represented by his lawyer Philip Nyachoti.
The judges noted that Mutava’s constitutional rights were violated since he was not furnished with testimonies of the witnesses who testified in support of allegations leveled against him. The court also ruled that Mutava was not given an opportunity to defend himself against the allegations and that the JSC also failed to give him a written reason for its decision.
JSC had probed and consequently cleared the judge of eight out of the 11 allegations but had found sufficient grounds to petition the President to form a tribunal to probe his conduct in three complaints.
“The tribunal as established is incompetent, irregular and unconstitutional and therefore lacks capacity and legal sanctity and sacredness to sit or discharge its constitutional mandate of investigating my conduct as intended by the President,” said Mutava.
The judge will know is fate March next year when the appellate judges will deliver their verdict on whether the suspended judge justice suspension was a violation of his rights and if the tribunal formed to investigate him was constituted lawfully.