Supreme Court delivers judgment on removal of ex-High Court judge Said Juma

In a judgment delivered on December 28, the Supreme Court of Kenya dismissed the petition by High Court Judge Said Juma Chitembwe, upholding the decision to remove him from office.

The unanimous ruling revealed a comprehensive examination of issues related to jurisdiction, judicial independence, electronic evidence, and the gravity of the judge's conduct.

Background of the scandal

The case originated from concerns raised by the Judicial Service Commission (JSC) in November 2021, prompted by video recordings and social media posts featuring discussions between Judge Chitembwe and former Nairobi Governor Mike Sonko.

The recordings implicated the judge in matters involving the sale of a property and discussions about legal cases over which he had presided.

The JSC initiated proceedings for the judge's removal under Article 168(2) of the Constitution, constituting a committee to investigate the allegations.

Following a thorough examination, the committee unanimously found merit in the motion, declaring it disclosed gross misconduct and a breach of the Code of Conduct for Judges.

Tribunal and Removal

Subsequently, a tribunal, appointed by former President Uhuru Kenyatta, conducted hearings and concurred with the committee's findings.

The tribunal concluded that Judge Chitembwe's conduct amounted to gross misconduct under Article 168(1) (b) and (e) of the Constitution, recommending his removal from office.

The Supreme Court Verdict

Judge Chitembwe, aggrieved by the tribunal's decision, lodged an appeal with the Supreme Court, raising several grounds for consideration.

The court, after careful deliberation, unanimously dismissed the petition on multiple fronts:

1. Jurisdiction: The Supreme Court ruled that the JSC had conducted proceedings in accordance with the Constitution and the law, upholding the principles of natural justice and the petitioner's constitutional rights.
2. Judicial Independence and Immunity: Considering the undisclosed relationship between the judge and former Governor Sonko, the court found that the petitioner's conduct divested him of any claim to protection under the principles of judicial immunity. The court emphasized that judges must avoid personal interests in cases they hear and maintain impartiality.
3. Electronic Evidence: The court rejected claims that the audio and video recordings violated the petitioner's right to privacy, asserting that they were recorded by participants in the conversations. The court found the recordings admissible, debunking allegations of entrapment.
4. Misconduct and Breach of Code: The Supreme Court concurred with the tribunal's findings, affirming that Judge Chitembwe's conduct breached the Code of Conduct and Ethics, amounting to gross misconduct.