The making of a rogue judge

Judge Said Chitembwe during an interview at the Standard Media Group offices in Nairobi on November 17, 2021. [Boniface Okendo, Standard] Justice Said Juma Chitembwe wept! That was the summary of the events of April 12, 2021, when Justice Chitembwe appeared before a panel, seeking to replace Justice David Maranga as the Chief Justice and the President of the Supreme Court. His emotions betrayed him over the lengthy inquisition during which he conceded that his greatest weaknesses were generosity in sentencing, giving people the benefit of 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." Those weaknesses and many others stick out as sore thumbs in the 250-page report of the tribunal appointed to look into his conduct as a judge. In a nutshell, the report handed over to President William Ruto on Tuesday 7 February reads like a script of how not to conduct oneself as a judge. Setting in Malindi In the report, the judge's original sin setting is Malindi, back in 2015 where he was stationed as a judge. In December 2014, Jane Mutulu Kyengo, a class eight dropout from Kwale and former beach waitress, loses her Mzungu husband Peter Werner, cremates him and distributes his property in accordance with his wishes. Barely three months later, then Nairobi Senator Mike Sonko offers to purchase impressive beach properties left by Werner, and registered in the names of two companies - Pacific Frontiers Sea Ltd and Okapi Estate Ltd. To regularize ownership, Kyengo crisscrosses Kwale, Mombasa and lands in Kilifi, Justice Chitembwe's area of jurisdiction to file the succession cause, presenting the properties as wholly owned by Werner when in actual fact they were owned by the companies. She also does not disclose to the court that the deceased had children- Kasten, Christine and Thomas - whom she later says she informed of their father's death, and that they allowed her to bury him. Land registration In the ensuing succession cause, the other directors of the companies, three Maasai, emerge and challenge the grant. Unfortunately for them, 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 transfers and obtains the title for one of the properties, Parcel No.779 to one Amana Saidi Jirani, now affirmed by the tribunal to be Justice Chitembwe's proxy. Kyengo says she handed over the property for safe-keeping and "protection from third parties." With the title now firmly in the names of Justice Chitembwe's proxy, and Sonko elected the 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. Nepalese consulate Of the Sh35 million agreed sale price, Sonko pays a deposit of Sh3.5 million and obtains the original titles of the two parcels. Thereafter sometime in early 2021 he strikes gold 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 cause on account of the undisclosed particular among other things. Some other party, a Mr Wekesa places a caution on Parcel No. 779. The Court of Appeal eventually sets aside the High Court Judgement. It is here where the drama begins, with one title registered in Justice Chitembwe's proxy, the Court of Appeal throwing spanner in the works and Sh305 million staring at them in the face. The consulate is hesitant to release a penny before ownership is settled, and Sonko is eager to bank the millions. At the political level, Sonko is being haunted in Nairobi, and in Kwale, Sh305 million is slipping away from his grasp. Negotiation to secure the deal begin and, with them, secret recordings that eventually gave away Justice Chitembwe's career on the bench, and soiled his reputation. Multi-million transaction According to the evidence adduced by Sonko, he and the judge agreed to team up to undertake the multimillion transaction smoothly. 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 on the Sonko web - except the judge - was recording each other. When the tribunal tabled a recording with 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 properly. Recordings A lot more recordings were tabled in the tribunal. In another recording at Justice Chitembwe's home, the judge was heard to mention 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 in transit. Sonko testified that the 3-hour life battery of his recording devices failed him once at the judge's residence and forced him to rely on his memory of the discussions. The recordings feature discussions on the land transaction, his court battles to save his governor's seat, favours to colleagues and feature different discussants, and different subjects. 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. Chitembwe's proxy "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 one limb that placed him in the line of ignominy. In the course of the tribunal proceedings, Justice Chitembwe flatly denied some of the meetings, including those cited at his Diani residence in Kwale and Mountain View Estate in Nairobi, ever took place. Unfortunately for him, mobile technology experts called to testify placed his mobile devices near the same locations as those claimed by Sonko. The judge denied advising Sonko on how to stage an appeal to his impeachment. The judge had participated in the High Court decision in a 1panel and had upheld his impeachment. He did not disclose his closeness and present dealings with him to the Chief Justice. In his defence, the judge said he was not that close to Sonko to warrant him to opt out. He also said the so-called "legal advice" to Sonko on how to approach the appeal was merely a way of calming him down. In any case, he claimed, the window for staging the appeal had since lapsed. Mediator in the deal 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." He admitted asking Jirani to call Sonko after he (the judge) was arrested in Milimani saying he needed to "lecture them" for causing his arrest. The judge had been arrested alongside another colleague in an alleged corruption incident. The tribunal easily concluded the meetings took place, that he attempted to advise Sonko on possible grounds of appeal in his own matter, and that he demonstrated a "singular lack of integrity" by engaging with parties who were litigants before him. It also concluded that he took a proprietary interest in a matter he adjudicated on, the Jirani parcel. Chitembwe had indicated his intention to appeal the decision of the tribunal.

The making of a rogue judge

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