High Court bars JSC from hearing two petitions to kick out Judge

The High Court in Nairobi has barred Judicial Service Commission (JSC) from hearing two petitions seeking to remove Court of Appeal judge Sankale ole Kantai from office.

Justice Anthony Mrima, in his ruling, ordered JSC not to entertain the cases filed by activist Okiya Omtatah and the late Tob Cohen’s sister Gabriel Hannah Van Straten. The two are seeking to have the senior judge removed from office over the death of businessman Tob Cohen.

Justice Mrima observed that the two petitions relate to another case filed by the judge against the Director of Criminal Investigations (DCI) George Kinoti and the Director of Public Prosecutions (DPP) Noordin Haji.

“The respondent (JSC) is hereby retrained from considering and making any decision on the petitions filed by Okiya Omtatah and Gabriel Hannah Van Straten,” ruled Justice Mrima.

The judge also ordered that the file be consolidated and be placed before him for speedy consideration. Kantai claimed the petitions emanate from the DPP’s decision not to prefer charges against him in relation to Cohen death. He argued that the petitions are strikingly similar to a reply filed by a DCI senior officer John Gachomo in a separate case he filed before the High Court seeking to block DCI from arresting or charging him.

“I am appreciably apprehensive that the petitions filed at the Judicial Service Commission are solely based on the replying affidavit of John Gachomo sworn on September 20, 2021. They are a collateral attack over the decision of the DPP not to charge me as aforesaid,” argued Justice Kantai.

His lawyer Peter Wanyama is of the view that owing to the ongoing case against DCI, it would be unfair for the JSC to proceed with the two petitions, which are allegedly relying on the same facts.

“Pertinently, if JSC adjudged that there is sufficient evidence to remove the petitioner from office on account of allegations deponed in an affidavit which have not been verified by a court of law,  the integrity of the proceedings in the aforesaid petition will be greatly undermined,” argued Wanyama.

The court heard that on June 9, 2021, Senior Assistant DPP Victor Mule wrote to the IG Hillary Mutyambai detailing the gaps the ODPP had identified in the file submitted by DCI. Mule, in his letter, informed the IG that although the agency said the judge forged directorship documents, there was no evidence in the file to corroborate the same.

At the same time, he said that DCI alleged that Cohen’s widow sent a text message to the judge planning the murder but never proved this in its file recommending charges against the judge.

“There is no cogent evidence to prove the conversation between the suspect and Wairimu on the day of the murder and on the subsequent days centred on the planning of the murder as concluded by the DCI,” Mule wrote.