A German investor has raised doubts about the impartiality of a tribunal formed to investigate the conduct of a judge who handled his Sh200 million property case.
Uwe Heerdes, through lawyer Kipkoech Ng'etich, is seeking a written assurance that the tribunal hearing his complaint against suspended judge Mohammed Kullow would be transparent, impartial, and in strict regard of the evidence presented before it.
President William Ruto appointed the tribunal on March 8, 2024, after Heerdes, a director of Mara Rafiki Limited, complained about the conduct of the judge in handling the case touching on his investment in the Masai Mara National Reserve.
Heerdes now says he learned of the apprehension of many people about composition of the tribunal and their association with high-ranking members of the government.
“In the view of many people, the tribunal has been set up with premeditated outcome in mind and that is to save and vindicate the Judge who had faithfully worked for the interests of high-ranking officials allied to the government,” he stated.
He said his apprehension was further fueled by having the colleagues of the suspended judge sit in a tribunal that will determine his fate, which, he argues, amounts to a conflict of interest.
Some members of the public, he said, have suggested that to avoid suspicion, the names used by some of the members of the Tribunal in the ordinary course of life and dealings have been changed in the gazette notice to conceal their real identities.
According to Heerdes, the tribunal's chairperson, Patrick Omwenga, also known as Patrick Kiage, though not associated with the appointing authority, was involved in the Building Bridges Initiative (BBI) case.
Omwenga, he said, was in a bench that ruled against the BBI to the excitement of the then Deputy President Ruto.
He said Justices Margaret Njoki and Antony Charo Mrima were Kullow's colleagues.
He added that Wanjiru Mwariri, also known as Gladys Wanjiru Mwariri, is the wife of now-former Transport CS Kipchumba Murkomen.
Rukia Abdinasir Mohammed is the wife of Wajir Governor Ahmed Abdullahi.
Charles Mulila is a director of NEMA and a KBC Director, hence close ties to the Executive.
Heerdes stated: "The Constitution does not make it mandatory to appoint serving Judges who are colleagues of the Respondent herein but can choose from Advocates who are qualified to be appointed as Judges or retired judges."
By appointing serving judges and family members of his political allies, the President would not do away with the notion of having to "save one of our own, he said.
Herdes noted that the Joint Secretaries are Legal Counsel in the Office of the President.
He said Jasper Mbiuki is a brother to Japheth Mbiuki. Japheth is the MP for Maara Constituency, while Collins K. Kiprono is the brother to Kapseret MP Oscar Kipchumba Sudi.
He noted that the two assisting lawyers were associated with President Ruto.
Heerdes said Emmanuel Omondi Bitta not only works with but also takes instructions from Attorney General Justin Muturi (now former), who in turn and for obvious reasons, takes orders from the President.
He said Georgiadis Majimbo is the United Democratic Alliance interim chair of Advocates and, therefore, has very close ties with the Executive.
Heerdes further noted that members of the public hold the opinion that there will be no impartiality and fairness at the Tribunal.
“I am apprehensive unless I get an assurance from the Tribunal that they are not meant to launder Justice Kullow,” he stated.
Heerdes said and his wife, Iris Heerdes, came to Kenya to pursue investments, and after undertaking all the legal processes, he incorporated the company and was issued an Investment Certificate.
The company, he said, continued to operate its businesses within the legal parameters until it suddenly, and without any possible explanation, became the subject of a series of vexatious and frivolous suits that culminated in the illegal destruction of the physical investments.
Among the cases, Heerdes listed include the Narok Environment and Land Court NO. 588 of 2017 (Olonana Limited v Mara Rafiki Limited), which continued in Kilgoris as ELC 34 of 2021, Narok Environment and Land Court Judicial Review (Republic County Government of Narok and Others Ex-parte Mara Rafiki Limited).
Judge Kullow, according to Heerdes, acted partially and ultimately delivered judgments and rulings that impacted negatively on the company.
The judge, he noted, issued ex-parte mandatory orders to demolish the company's multi-million physical investments.
After the demolition of the property, Heerdes said he, through his lawyer, petitioned the Judicial Service Commission for the removal of Justice Kullow.
