Court bars JSC from acting on Sankale ouster bid over Cohen murder

Slain tycoon Tob Cohen's sister Gabrielle Van Straten and her husband Roy Van Straten during proceedings at Milimani law courts. [File, Standard] 

The High Court has barred the Judicial Service Commission (JSC) from considering two petitions seeking the removal of Court of Appeal Judge Sankale ole Kantai over allegations linking him to the murder of Dutch tycoon Tob Cohen.

In a judgment delivered on Friday,  Justice Chacha Mwita has declared that it would be premature and unlawful for the JSC to proceed with the petitions lodged by Senator Okiya Omtatah and Cohen’s sister, Gabrielle Van Straten, while a related case is still pending in court, as doing so would violate Justice Sankale’s right to a fair hearing.

“A declaration is hereby issued that Judicial Service Commission’s decision to proceed and to consider petitions lodged by Okiya Omtatah and late Tob Cohen’s sister Gabrielle Van Straten dated October 4, 2021 and October 5, 2021 respectively for the removal of Justice Sankale ole Kantai from office as a judge of the Court of Appeal … is a threat to violate his rights to a fair hearing,”  Justice Mwita ruled.

The judge further issued an order prohibiting the JSC from acting on the petitions until the conclusion of Petition E334 of 2021, in which Justice Sankale has sued the Inspector General of Police and others over his February 21, 2020 arrest.

Cohen’s sister Van Straten has accused Justice Sankale of playing a role in her brother’s murder, while Omtatah questioned his dealings in company shares allegedly linked to Cohen’s estate.

However, in December 2020, the Director of Public Prosecutions (DPP) cleared the judge of murder charges, citing insufficient evidence to connect him to Cohen’s killing.

In his decision, Justice Mwita stressed that the removal of a judge is a serious and weighty matter of great public interest and warned that the JSC must not act on disputed affidavits still under active litigation in another court.

The dispute affidavits had been filed in 2021 by lead investigator John Gachomo, who alleged that a Court of Appeal judge was involved in Cohen’s murder, before later recanting his claims.

Justice Mwita noted that the JSC ought to consider Gachomo’s retraction and should also accord Justice Sankale a fair hearing.

 He faulted the Commission for failing to respond to Sankale’s letter seeking clarification, yet still compelling him to answer the complaints.

“The right to a fair hearing must not be sacrificed at the altar of expediency,” the judge held, adding that each party would bear its own costs to the suit