Never-say-die judge fights ‘unlawful’ dismissal

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By BENSON WAMBUGU newsdesk@ke.nationmedia.com
Posted  Sunday, January 27  2013 at  00:30

IN SUMMARY

• Former High Court judge challenges his removal from the Bench during the 2003 ‘radical surgery’

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A High Court judge thrown out of the Bench 10 years ago has now renewed his bid to reclaim his job after filing a constitutional suit seeking to quash the findings of a tribunal that recommended his removal.

Justice Tom Mbaluto has lodged a fresh application in the Constitutional and Judicial Review division challenging the findings of a five-judge tribunal that recommended to President Mwai Kibaki that he was unsuitable to serve in the judiciary.

Mr Mbaluto was among the 23 judges who were suspended in the infamous 2003 “radical surgery” of the judiciary spearheaded by Court of Appeal judge (rtd) and former director of the defunct Kenya Anti-Corruption Commission Aaron Ringera.

While most of the judges who were accused of misconduct opted for early retirement, others challenged their removal in the tribunal where justices Philip Waki, Daniel Aganyanya, the late Moijo ole Keiwua and Msagha Mbogholi were cleared.

Lady Justice Roselyn Nambuye’s name was deleted from the Kenya Gazette notice and she was consequently reinstated. Justice Aganyanya has since retired.

The judge, through his lawyer Kethi Kilonzo, wants the court to find that the tribunal acted beyond its jurisdiction and had no powers to convert itself into an appellate court to determine whether his decision in adjudicating over a controversial land dispute in the High Court in Kisii – civil suit No 10 of 1990, Gichambati Mwita Mairo versus Sarara Matongo Sigore – was within legal boundaries.

Mr Mbaluto is fighting allegations that he delivered the judgment in Kisii with the intention of inflicting injury upon Sarara Matongo Sigore, the defendant in the property dispute. He contends that the tribunal did not base its finding on the adduced evidence but hurriedly concluded that “I took a bribe because I could have delivered a different judgement”.

The judge is now urging the court to find that the tribunal acted beyond its mandate and committed errors in law and facts that were not supported by any evidence or matters before it.

He says in court documents that the tribunal ignored all the evidence given in his favour by witnesses.

Mr Mbaluto has named the tribunal head Lady Justice Jessie Lesiit and co-members Ms Hannah Okwengu, Mr Jackton Ojwang, Mr Festus Azangalala and Mr Luka Kimaru as respondents in the suit to be heard on February 29. The five were recently cleared to serve in the Bench by the Judges and Magistrates Vetting Board.

In its report, the tribunal said Mr Mbaluto engaged in unethical practices and lacked integrity in the performance of the functions of his office, which amounted to misbehaviour “as provided for by Section 62 (3) of the Constitution of Kenya”.

“Therefore, we recommend that in accordance with section 62 (5) of the Constitution, Justice Mbaluto be removed from the Bench for misbehaviour under section 62 (4) of the Constitution,” ruled the tribunal. The President acted on the report and sent the judge home.

During the hearing on February 29, Ms Kilonzo and the Attorney-General will make submissions and, thereafter, the court will determine Mr Mbaluto’s fate.