Judge on the spot over Pattni ruling

By Wahome Thuku

NAIROBI, KENYA: High Court Judge Joseph Mbalu Mutava’s new career in the Judiciary is now on the chopping board over allegations of misconduct.

His job stands on the line particularly over his involvement in cases relating to Kamlesh Pattni, the architect of the multi-billion shilling Goldenberg scandal.

The Judicial Service Commission has petitioned President Uhuru Kenyatta to form a tribunal to investigate Mutava’s conduct relating to three complaints of misconduct made against him.

The JSC says it had received 13 complaints against the judge, between March 2012 and March 2013 calling for his removal.

Yet through due diligence, Mutava, who was only appointed judge on August 22, 2011, would have seen it coming and avoided it but he did not.

The push for his removal has been orchestrated by the by the Law Society of Kenya and a Nairobi-based NGO, the International Centre for Policy and Conflict (ICPC) which has been watching over the cases involving the Goldenberg scam.

Should this lead to his removal, Mutava will be added to the list of judges and other senior public officers who have lost their jobs in one way or another due to their involvement in Pattni’s affairs.

In March, Judge Mutava delivered a ruling barring the Director of Public Prosecutions from ever prosecuting Pattni on any Goldenberg-related criminal charges, thereby clearing him of the charges that had been pending for years.

The judgement raised a storm among lawyers, NGOs and other interested institutions as well as the public, putting the judge in the spotlight.

Mutava came into the picture in Pattni’s cases soon after he was appointed and subsequently posted to the Commercial and Admiralty division of the High Court and started handling cases involving the businessman-turned-preacher.

Goldenberg scandal

Mutava had just left a job as Assistant Legal Secretary at Central Bank, a position that observers say had put him in the knowledge of the Goldenberg scandal, its dealings and those involved in it.

He was the first judge to be appointed from among those who had undergone  the 8-4-4 system of education, an achievement that should have made his career more prosperous.

On his part, Pattni was charged in 2006 following recommendations by the Commission of Inquiry into the Goldenberg scandal. He was one of the only two suspect being tried for the Goldenberg scandal, others having either been cleared, died or both. He has since made numerous efforts to end the cases against him and to clear his name.

The scandal, which is the biggest in Kenya’s history, cost the country Sh158 billion. Some 18 people were named as being the masterminds in the Bosire commission.

In 2010, he negotiated with the then Anti-corruption Commission for the  return of the Grand Regency Hotel (now Laico Regency Hotel) which was one of the properties linked to the Goldenberg scandal.

In late 2011, Pattni began negotiations with the DPP on how the matter could be settled out of court.

The ICPC protested and wrote to the DPP claiming the move was unconstitutional.

In November 2011, the NGO filed a Constitutional petition to have the DPP stopped from terminating the case. The DPP stopped the negotiations and allowed the case to go on before a Nairobi magistrate court.

The ICPC wrote to the JSC in October last year to investigate the conduct of Justice Mutava over the handling of cases involving Mr Pattni.

Past knowledge

“The ICPC wanted JSC to make findings on why the judge failed to disclose his past knowledge of the dealings of Goldenberg; failure to disqualify himself on this case, how the files touching on Kamlesh were being heard by him despite the fact they were in a different section and his entire conduct in handling the cases,” says ICPC Executive Director Ndung’u Wainaina.

“Appointment of Justice Mutava to the bench without substantive inquiry into his role and or what he knew about the Goldenberg scandal raised a fundamental issue on the competence of the Judicial Service Commission to thoroughly inquire and vet persons being appointed to the Bench,” Ndung’u claimed.

The organisation clams that though Pattni’s case was under the Judicial Review section and not Commercial division, Justice Mutava was able to access and to hear it.

“Why didn’t Justice Mutava remove himself from hearing any matter related to the Goldenberg? 

Ndung’u say the State is not keen on ensuring that those linked to the Goldenberg scandal are punished.

“On August 8, 2006 the Attorney General told all Kenyans that he would appeal the court judgement which immunized former Internal Security minister the late Prof George Saitoti from prosecution for criminal offences based on the findings of the Goldenberg Commission of Inquiry.  This had never happened even by the time Saitoti passed away,” he says.

The JSC did not disclose whether the Pattni case was one of those that would form the basis for investigations against Mutava.

The commission constituted a committee to inquire into the 13 allegations of corruption, incompetence, bias and misconduct against the judge on December 1, 2012. The committee started the inquiry on December 17 and concluded its work on May 14 this year having heard from 28 witnesses.

“Justice Mutava was accorded the opportunity to respond to each and every allegation levelled against him in writing. The  judge was also accorded an opportunity to appear in person before the committee accompanied by his lawyer,” said the JSC statement signed by the vice chairperson Christine Mango.

The Committee cleared the judge in eight out of 11 complaints investigated but concluded that in the other three there was sufficient grounds to petition the President to set up a tribunal to investigate him.

Under the Constitution, the President must set up the tribunal within 14 days. The judge may also choose to resign rather than face the tribunal.

The ICPC has also filed an application at the Court of Appeal seeking