NAIROBI: New judge under probe over Goldenberg

By MUGUMO MUNENE

The Judicial Service Commission (JSC) is investigating a judge accused of assisting tycoon Kamlesh Pattni in a scheme to halt criminal proceedings against him over the theft of public funds.

The conduct of High Court Judge Joseph Mbalu Mutava has been called to question over orders he issued in a case at the centre of the Goldenberg scandal, executed by Mr Pattni in the early 1990s and through which billions of shillings were stolen from public coffers.

The investigation follows a petition against the judge filed by Havi and Company Advocates on behalf of the International Centre for Policy and Conflict and which seeks to have him removed from office.

The judge finds himself at the centre of a storm over the handling of a matter that came before him in which Mr Pattni wanted criminal proceedings against him [Mr Pattni] over Goldenberg stopped.

He would become the second judge to face investigation after former deputy chief justice Nancy Baraza. Ms Baraza resigned after a protracted battle before the JSC and the courts over accusations of misconduct brought by a security guard.

Mr Pattni made the application in court after negotiations between him and the Director of Public Prosecution (DPP) to have the criminal proceedings dropped collapsed early in the year.

Mr Pattni had approached the DPP under the Criminal Procedure Code and the Penal Code offering a proposal under which he would make restitution and the State would drop charges.

The DPP, Mr Keriako Tobiko, told the Sunday Nation that the negotiations collapsed because he was not satisfied with Mr Pattni’s proposal for restitution.

“It is correct that Pattni made a proposal. After consideration of the proposals and offers, we were not satisfied that there was a serious offer from them. Our view was that the Goldenberg scandal goes far beyond the Grand Regency (which he returned to the public). We felt that the proposal was inadequate. The negotiations terminated because they were not prepared to make another proposal,” Mr Tobiko said.

Following the collapse of negotiations, the DPP moved to reinstate Mr Pattni’s prosecution which Mr Justice Mutava, in turn, sought to stop through temporary orders issued on August 10, 2012.

The petitioner says that the whole matter has not been handled through the correct procedure and some of the orders made were outside of the law.

On September 24, 2012 the matter was mentioned before Mr Justice Mutava and according to the petitioner “was curiously listed as “CC. 305/012 K. Damji Vs the Attorney-General to conceal the identity of Pattni.” Mr Pattni’s full name is Kamlesh Mansuklal Damji Pattni.

The petitioner has told JSC that the file on the matter has been kept by an officer in the registry department of the Commercial division “under lock and key.”

The petitioner has faulted the judge’s handling of the matter and accused him of being part of “an orchestrated cover up to aid and abet Pattni’s criminal conduct”.

On Saturday, JSC secretary Gladys Shollei confirmed to the Sunday Nation that they had received the complaint and taken action.

“The Judicial Service Commission was busy with interviews for Court of Appeal judges but has now constituted a committee and invited the judge to respond,” Mrs Shollei said.

When contacted by the Sunday Nation on Friday, Mr Justice Mutava said accusations by the Law Society of Kenya (LSK) to the Chief Justice in June in which he and another judge were accused of corruption were not backed by any evidence and could not stand.

On the complaint filed by Havi and Company Advocates for the International Centre for Policy and Conflict, Mr Justice Mutava said: “The CJ, I’m told established a committee headed by Judge Lenaola. They did not ask me to respond. That letter has never been forwarded to me personally. This letter has never been sent to me a month down the line.”

He said that the truth would come out in due course and suggested that the complaints might be part of an orchestrated campaign to force him to rule in a certain way on some of the matters before him.

The complaint about Mr Justice Mutava and Mr Pattni has also called to question the conduct of an officer in the DPP’s office.

On Saturday, Mr Tobiko said he had received a copy of the complaint and asked his officer to give an explanation after which he would be able to comment or take action.

Received a copy

LSK secretary Apollo Mboya told the Sunday Nation that he had received a copy of the complaint.

“The Law Society expects the JSC to consider the allegations and then reply with a view to taking the necessary action on the matter. Any allegation against a judicial officer is very grave and should be handled expeditiously with a view to settling the matter in one way or the other,” Mr Mboya said.

In addition, Mr Mboya said, LSK has requested lawyers to furnish the secretariat with any information relating to Mr Pattni’s cases listed and heard in the Judiciary from August 2011 to date to help the society establish if there exists a pattern orchestrated to defeat justice.


Source: Sunday Nation (25/11/2012): http://www.nation.co.ke/News/New-judge-under-probe-over-Goldenberg--/-/1056/1628518/-/462xnlz/-/index.html