Kenyan former High Court judge Said Juma Chitembwe has failed to overturn his sacking at the Supreme Court after a bench of five judges of the apex court dismissed his appeal.
The top court upheld his removal as a judge in February saying the evidence presented before the tribunal appointed to investigate his conduct rightly established that his conduct was in breach of the Code of Conduct and Ethics and also amounted to gross misconduct or misbehaviour contrary to Article 168(1) (b) and (e) of the Constitution.
The former judge had protested against the use of video and audio recordings, which were covertly recorded by former Nairobi governor Mike Sonko.
He argued that the recordings contravened his right to privacy.
A Bench of five judges of the Supreme Court presided by Justice Mohammed Ibrahim, however, said the recordings did not contravene his right to privacy and their admission as evidence did not render the inquiry before the Tribunal detrimental to the administration of justice.
On the allegation of being tricked in the recordings by his relatives and acquaintances, the court said even in the absence of the recordings, there was independent and direct evidence of persons who were present and participated fully in the recorded conversation.
“Those present testified as to who they were and what their engagements were in different sectors of the economy. None of them was a government agent or an enforcement officer and therefore the allegation lacked basis,” the court said.
A judge can be removed from the office over inability to perform the functions of office arising from mental or physical incapacity, breach of a code of conduct prescribed for judges, bankruptcy, incompetence or gross misconduct or misbehaviour.
Mr Chitembwe, who was appointed a judge of the High Court on April 2, 2009, was removed in February after a tribunal appointed by President Uhuru Kenyatta, to investigate his conduct, recommended his sacking.
The recordings surfaced when Chitembwe was serving as a judge of the Civil Division in Nairobi in 2021.
The judge later appeared in a TV interview on November 18, 2021, and made various concessions and admissions.
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