Justice Said Juma Chitembwe wept!
That is how one can summarise the events of April 12, 2021, when Justice Chitembwe appeared to be interviewed for the Chief Justice job.
He was among the 10 candidates interviewed for the position of Chief Justice and President of the Supreme Court following Justice David Maraga's retirement.
He got so emotional during the interview and conceded that his greatest weaknesses were generosity in sentencing, giving people the benefit of the doubt, and overworking himself.
"Wherever I go to a court, those in prison are very happy because they think they will get a moderate sentence from me," he said and added: "I tend to believe in what you are telling me for some time."
Some of these weaknesses that he had spoken about earlier stick out as a sore thumb in the 250-page report of the tribunal appointed to look into his conduct as a judge.
The report, which was handed to President William Ruto on Tuesday, reads like a script of how not to conduct oneself as a judge.
The report details an incident in Malindi in 2015 where Chitembwe was stationed.
In December of the previous year, Jane Mutulu Kyengo, a Standard Eight dropout from Kwale and former beach waitress, loses her husband Peter Werner, cremates him and distributes his ashes in accordance with his wishes.
Barely three months later, then Nairobi Senator Mike Sonko knocks on her door, offers to purchase beach properties left by Werner, but registered in the names of two companies- Pacific Frontiers Sea Ltd and Okapi Estate Ltd.
To regularise ownership, Kyengo crisscrosses Kwale, Mombasa and lands in Kilifi, Justice Chitembwe's area of jurisdiction to file the succession cause, presenting the properties as owned by Werner when in actual fact they were owned by companies.
She does not disclose to the court that the deceased had children- Kasten, Christine and Thomas- whom she later says she "informed"about their father's death, and that they allowed her to bury him.
In the ensuing succession cause, the other directors of the companies, three Maasais, emerge and challenge the grant. Unfortunately for them, a consent is registered in July 2016 and adopted by the court as its order. In August 30, 2016, Kyengo gets the all-crucial order and proceeds to register the properties in her name.
A few months later on December 14, 2016 in a single day, Kyengo obtains the title for one of the properties, Parcel No.779, and transfers it to one Amana Saidi Jirani, now affirmed by the tribunal to be Justice Chitembwe's proxy.
Kyengo says she handed over the property ostensibly for safe-keeping and "protection from third parties." With the title now firmly in the names of Justice Chitembwe's proxy, and Sonko elected governor of Nairobi, Kyengo enters into a fresh sale agreement on November 7, 2017, to sell him two properties, Parcel No.779 and Parcel No. 1222, the latter still in Kyengo's name.
Of the Sh35 million agreed sale price, Sonko gives a deposit of Sh3.5 million, and obtains the original titles of the two parcels. He thereafter sometimes in early 2021 strikes a goldmine when the Nepalese Consulate agrees to buy the said properties for a cool Sh305 million.
In the meantime, the other "Maasai" owners of the companies have moved to the Court of Appeal to challenge the Malindi succession case on account of the undisclosed particulars among other things. Some other party, a Mr Wekesa, places a caution on Parcel No. 779.
It is here where the drama begins.
The consulate is hesitant to release a penny before all these matters are settled, and Sonko is eager to cash in on the sale and pay off Kyengo. In fact, Sonko reckons, the monies are enough to pay off everybody involved. At the political level, Sonko is being haunted in Nairobi, and in Kwale, Sh305 million is slipping away from his grasp.
Negotiations to secure the deal began in earnest, with meetings in Kwale and Nairobi. It was during these meetings, and phone communications, that secret recordings were made.
According to the evidence adduced by Sonko, he and the judge agreed to team up to push through the deal. That would involve a lot of negotiation as to who would get what from the sale, including the parties at the Court of Appeal who were clearly standing in the way of the deal.
"It was his evidence that the judge insisted that some money be brought to his house in Dirhams and dollars and that the 'Maasai's' be dealt though their advocate," the report says.
From the report, it turns out every other person in the Sonko web- except the judge- was recording each other during these meetings.
When the tribunal tabled a recording depicting Kyengo saying she had received Sh8 million from Justice Chitembwe and further Sh28 million from Sonko, Kyengo tabled her own recording to prove that Sonko coached her to say so in order to convince the Nepalese that the deal was lined up proper.
A lot more recordings were tabled in the tribunal. In another recording at Justice Chitembwe's home, the judge was heard mentioning the word "thirty" which Sonko claimed was a reference to Sh30 million the judge said was to be delivered to one of his colleagues who had "stepped in for him and delivered the judgment in the Malindi Succession Cause.
There were other recordings made in the judge's Nairobi home, Sonko's Upperhill office, and in cars while on transit. Sonko testified he would have gotten more recordings of these meetings were it not for three-hour life battery of his recording devices.
The recordings feature discussions on the land transaction, his court battles to save his seat, favours to colleagues and feature different discussants. In most of them, Jirani is a principal player.
In one recording at Sonko's Upperhill office, Jirani calls the judge at the behest of another Nairobi lawyer who was seeking help on a client. According to the evidence tendered by Sonko, the judge said his colleague was demanding Sh5 million to conclude the matter, plus his own commission of Sh1 million.
In the report, Sonko freely speaks to what appeared to be attempts to bribe Court of Appeal judges in the matter of his impeachment, through the judge. He is quoted in the report discussing several judges, among them one whom he thought was a born-again Christian and therefore did not take bribes.
"The evidence leads to the unavoidable conclusion that the judge had an interest in Parcel No.779 and that Jirani was acting as his proxy," the tribunal concluded, in the one limb that placed him in the line of ignominy.
For all the close interactions Justice Chitembwe was having with Sonko in the background, you would think he would opt out of the matters involving the governor. But no, the judge sat and heard as part of a panel the case Sonko lodged in the High Court challenging his impeachment.
The bench upheld the impeachment and Sonko got even angrier. He could not understand why they would do so, especially given that there was no quorum in the county assembly. To deny the assembly quorum, Sonko had flown some MCAs to Kwale, and kept them close by.
But he forgot that those were Covid-19 times and the assembly could work around his mischief by tinkering with the electronic voting and attendance. Despite having them in Kwale, and confiscating their phones, the MCA's were somehow logged into the system, and their votes recorded.
In their next meeting at the judge's Mountain View home, Sonko confronted the judge in the meeting recorded by one of his aides: "Towards the tail end of the meeting, Sonko and the judge went aside and discussed the probable points of appeal and since Sonko did not have a pen, he asked him for one which he used to jot down the points," Jirani testified.
Appearing before the tribunal, Justice Chitembwe denied that the meetings, including those cited at his Diani residence in Kwale and Mountain View Estate in Nairobi, ever took place.
The judge denied advising Sonko on how to stage an appeal to his impeachment. He said he was merely trying to calm Sonko as he was agitated. In any case, he claimed, the window for staging the appeal had since lapsed.
On conflict of interest, the judge said he was not that close to Sonko to warrant him to opt out of his impeachment case. On the discussions involving the Kwale properties, the judge claimed he was acting as a mediator in the deal on account of knowing the parties.
He flatly denied that Jirani was his agent, claiming he only dealt with him as a research assistant in a scholarly venture he was involved in. He acknowledged his voice in the recordings but insisted that they were edited to distort the context.
He said the KTN interview which depicted him admitting to a number of things was "edited, improved and new words added to change the context." Despite his earlier claim that his dealings with Jirani were restricted to academic research, the judge made a startling contradiction:
He admitted asking Jirani to call Sonko after he (the judge) was arrested in Milimani. Asked why then he asked Jirani to call Sonko, he said he needed to "lecture them" for causing his arrest. The judge had been arrested alongside another colleague in an alleged corruption incidence.
With aid of technology, corroborated by witnesses and contradictions in the judge's own story, the tribunal was easily convinced that he was indeed a rogue judge. It concluded the meetings took place, that he attempted to advise Sonko on possible grounds of appeal in his own matter, and that he demonstrated "singular lack of integrity" by engaging with parties who were litigants before him.
More importantly, it concluded that he took a proprietary interest of a matter he adjudicated on, the Jirani parcel. It is the Jirani parcel that ignited it all, and sunk the judge. Justice Chitembwe has indicated his intention to appeal the decision of the tribunal.
The main players
- Jane Mutulu Kyengo- the widow: Peter Werner's ex-wife who registered his Kwale properties in her name, before transferring them to third parties
- Amana Saidi Jirani- the proxy: Justice Chitembwe's nominee who takes over Parcel 779 on behalf of the judge. Judge claims he was merely his research assistant in his PhD thesis
- Mike Sonko- the dealmaker: Expressed interest to buy Werner's properties as soon as he died, later signs sale agreement for all of them with Jane in anticipation of bigger sale
- Jimmy Ibrahim Askar- The Nepalese Consul who expressed interest in buying the properties at the behest of undeclared investors.
- Justice Juma Chitembwe, the rogue judge: Mischievously acquired a stake in Jane's property through a proxy, Amana Saidi Jirani.
The locations
- Mountain View, Nairobi- Justice Chitembwe's Nairobi home where a meeting to discuss a "consent agreement" on the Kwale properties was held. Meeting also discussed possible points of appeal in the Sonko impeachement matter
- Upperhill, Nairobi- Sonko's Nairobi office were Jirani made calls to the Judge not just on the land matter, but also discussing bribes to other judges handling separate matters.
- Mombasa hotel- Venue of a meeting between Justice Chitembwe and renowned city lawyer where they discussed seeking help with another judge handling a separate matter. The lawyer later complained that despite taking alot of money to the other judge, the judge was not helping his case.
- Diani Beach, Manyatta Resort- Venue from where on May 22, 2021, Sonko borrowed one of his associate's car, a Honda station wagon and drove to Justice Chitembwe's home nearby, to discuss the land matters.
- Kwale, Kimerimeta Safari Lodge- Sonko's own lodge where a recording of a conversation between Jirani and another city lawyer was made. They discussed a High Court judge who was not helping matters despite receiving money to do so.
