JSC rejects Havi petition to remove Justice Mabeya from office

Lawyer Nelson Havi. [File, Standard]

Judicial Service Commission has dismissed a petition filed by lawyer Nelson Havi seeking the removal of High Court Judge Alfred Mabeya over claims of misconduct.

The commission, in its decision today, said that the petition filed by the former Law Society of Kenya was inviting it to illegally sit on the appeal of a case where the judge made a decision.

The Chief Justice Martha Koome-led commission observed that the battle between Pumwani Riyadha Mosque Committee against Gikomba Business Limited had been settled by the Court or Appeal last month.

“The Commission observed that delving into a Petition of such a nature would be tantamount to sitting on appeal or reviewing a Court's decision, a mandate which is outside the jurisdiction of the Commission,” the Commission ruled.

Havi filed the petition for the removal of Justice Mabeya following his verdict against his client, Riyadha, over a land lease.

The judge in his ruling declined to strike out Gikomba’s case after finding that the case surrounded breach of contract, hence, it was properly filed before the Commercial Court.

“The suit before court concerns the Lease by the defendants given to the plaintiff for the construction of Gikomba Business Center, which is a commercial venture. It is alleged that the defendants are in breach of that Lease and this suit is all about that. In applying the predominant test, the matter involves commercial interests and therefore, it is within the purview of the High Court jurisdiction. Accordingly, the matter is in the correct forum,” ruled Justice Mabeya.

He also dismissed Riyadha’s application to halt the case on the basis of an arbitration claim.

Upon appeal, Court of Appeal Judges Kathurima M’inoti, Lydiah Achode and Weldon Korir unanimously ruled that the Commercial Court had no powers to entertain the case.

Instead, the bench headed by Justice M’Inoti said that the case filed by Gikomba was meant to be settled by the Lands Court.

“That being the case, we must respectfully disagree with the learned Judge’s finding on jurisdiction. In our view, the dispute herein is one which fell within the jurisdiction of the Environment and Land Court pursuant to the provisions of Article 162(2)(b) of the Constitution and section 13(2)(a) of the Environment and Land Court Act,” the bench ruled.

In the meantime, JSC also dismissed Havi’s claim that the judge was working with known advocates for favourable judgments. The commission said that the claim had not been substantiated with evidence.