High Court judge Said Chitembwe has claimed that a series of video recordings implicating him to corruption cannot be used before JSC as the evidence was illegally obtained.
The recordings were released by former Nairobi Governor Mike Sonko.
Chitembwe, in an application before the High Court, seeks to have an order restraining the Judicial Service Commission from conducting, proceeding with and determining the petitions filed before it over allegations of gross misconduct.
He claims the recorded telephone and video conversations between him, Sonko, his brother Amana Said Jirani and other and third parties was illegally obtained evidence and cannot form the basis of any proceedings before the JSC or any court or tribunal.
“The evidence was obtained in contravention to my rights to privacy as guaranteed under Article 31 (d) of the constitution.
“I am genuinely apprehensive that the JSC reliance on purported audio and video recordings obtained by Sonko contrary to the law, will greatly prejudice right to fair administrative action from the JSC,” he argues.
The video famously identified as ‘Sonko leaks’ went viral last month raising questions on Chitembwe’s integrity.
Sonko posted on his Facebook page and Twitter account a series of recorded telephone conversations and video records titled ‘the rot in the Kenyan Judiciary’
But Chitembwe argues that the recordings posted by Sonko on his Facebook page and Twitter account and other social media platforms were recordings which were done without his consent or knowledge and other parties allegedly involved in the conversations whose dates are not verifiable.
Come November 25, JSC notified Chitembwe that it had initiated proceedings for his removal from office on account of several video clips, social media postings and cell phone recordings attributed to Sonko.
Three petitions were filed against him before the JSC.
Chitembwe was then directed to submit his response and list of witnesses, witness statements and list of documents within 14 days and also fixed the proceedings for hearing on December 14.
Through lawyer Peter Wena, Chitembwe says the proceedIngs by the JSC are based on his private conversations obtained without his consent and in violation of his right to privacy.
He also argues that fixing all three petitions for hearing on the same day places a bar on his ability to prepare himself and defend himself sufficiently.
“They gave me a very short period of time, of less than 21 days to prepare for the hearings. My right to fair administrative action has also been violated in that I have not been provided with the video clips, telephone conversation recordings and Facebook posts relied upon.”
The petitions before the JSC are filed by imgrad Beige, David leboo and Francis Wambua. The petition by Beige and Leboo seeks to challenge the merits of a certain judgment delivered in Malindi.
The petition by Francis Wambua on the other hand makes several claims of misconduct against the judge. The allegations are based on telephone conversations between Chitembwe, Sonko and his brother and other parties which were recorded and reveal that there was a conspiracy to rule against Sonko in petitions challenging his impeachment as governor of Nairobi city county.
Wambua alleges they have tangible and credible information that Jirani received a bribe on behalf of Chitembwe to change the outcome of the case.
Particular of misconduct against Chitembwe as set out by Wambua is judge abusing his discretion and rendering dishonest judgements based on outside pressure and influences.
Others are the judge confessing to Sonko that the judgment he delivered was faulty for want of public participation in the Senate and that he can criticise the same in the Court of Appeal.
Another ground of misconduct is the judge receiving a bribe and using his brother Jirani as a proxy or agent to receive a bribe for and on his behalf.
The judge in his case has sued Sonko, Francis Wambua, Amana Said Jirani, Imgard Beige, David Leboo and Judicial Service Commission.