IN THE REPUBLIC OF KENYA
IN THE MATTER OF ARTICLES 164, 168, OF THE CONSTITUTION OF KENYA, 2010
IN THE MATTER OF THE JUDICIAL SERVICE ACT, 2011 AND
IN THE MATTER OF THE JUDICIAL CODE OF CONDUCT AND ETHICS,
LEGAL NOTICE NO. 132/2016
IN THE MATTER OF A PETITION FOR REMOVAL OF SUPREME COURT
JUDGES HON. J.B. OJWANG, HON. NJOKI S. NDUNG’U, HON. SMOKIN WANJALA AND HON. MOHAMED K. IBRAHIM IN ACCORDANCE WITH ARTICLES 168 (1) (b), (d) & (e) OF THE CONSTITUTION OF KENYA, 2010
IN THE MATTER OF COMPLAINTS OF GROSS MISCONDUCT, MISBEHAVIOR, CORRUPTION AND BREACH OF THE JUDICIAL CODE OF CONDUCT AND ETHICS
The Judicial Service Commission,
Mayfair Centre, 5th Floor, Ralph Bunch Road, Upperhill, P.O. Box 40048-00100. NAIROBI
RE: PETITION FOR REMOVAL AGAINST HON. MOHAMED K. IBRAHIM, HON. JB. OJWANG, HON. SMOKIN WANJALA AND HON. NJOKI S. NDUNG’U
The Humble Petition of is as follows:
1. The Petitioner, being a Kenyan Citizen, is entitled and obligated to defend and uphold the Constitution of the Republic of Kenya; with particular regard to Articles 1(1), 3 (1), 10 (1)(a), 159, 160, 258 and 259 therein. His address of service for purposes of this Petition
is care of NCHOGU, OMWANZA & NYASIMI ADVOCATES, HAZINA TOWERS, 6th FLOOR P.O. BOX 4045-00200. NAIROBI.
2. THAT this Petition arises from the determination of the Supreme Court of Kenya in Petition 7/2018- Mohamed Abdi Mahamud Vs Ahmed Abdullahi Mohamad & 4 Others; by which a Judgement was delivered on 15th February 2019.
3. THAT the Appeal was filed on 7th May 2018 and a determination was delivered on 15th February 2019; more than 10 months since the filing of Application for stay of the judgment of the Court of Appeal. It was one of the only petitions arising from Election Petition Appeals where interlocutory applications were argued and a determination made. Despite a general direction by the court in all other petitions that interlocutory applications would ONLY be argued during the main hearing of the petition.
4. THAT the initial Election Petition before the High Court was filed on 5th September 2017 and a judgment was delivered on 12th January 2018. The Appellant filed the Appeal and subsequently a judgment was delivered by the Court of Appeal on 20th April 2018. The average time in the lower courts for conclusion of the matter was four calendar months.
5. THAT as shall be demonstrated in this particular petition against the named judges, the judges’ determination, when combined together with their overall attitude in Petition No. 7 of 2018, suggests that their [Majority] decision was a result of a calculated path of abdication/dereliction of duty, gross intellectual dishonesty and corruption; and that any shortcomings therein were not arrived through human error/ or judicial fallibility. Rather, it invites the ONLY inference that the named Judges did not accept the parameters the law imposes on judging the matters at issue, and that through a pre-determined outcome, they violated the Constitution, the Code of Judicial Conduct and the principles of judicial independence.
6. THAT failure to respect the law or to be able to imagine or perceive accurately the matters at issue in Petition No. 7 of 2018 triggers concerns about their integrity in discharge of judicial functions, undermines the rule of law and the strength of our democratic institutions.
7. THAT the perverse outcome intended by the majority by mere subterfuge of jurisdictional misinterpretation, resulted in the ‘election’ of a candidate who, by a ton of inconvertible evidence is not qualified to be governor. A court that hammers, twists and bends the law to bury what is as plain as daylight is a forum of injustice, a threat to liberty and an enemy of the constitution.
8. THAT this conduct coupled with the disclosed instances of corruption and improper communication with parties to a judicial proceeding, grossly undermines the rule of law and the independence of the Judiciary as a whole.
9. THAT the disclosed abuse of judicial independence by the named judges threatens the integrity of the judiciary as a whole and the harm alleged is incurable; except by removal from office.
10. THAT Article 10 (1) (a) & (b) of the Constitution provides that the national values and principles bind state organs & officers, public bodies and persons whenever they interpret or apply the Constitution or any law.
11. THAT the national values stipulated in Article 10 (2) of the Constitution include the rule of law, democracy, integrity, transparency and accountability.
12. THAT Article 159 (1) of the Constitution provides that judicial authority derives from the people and vests in, and shall be exercised by courts and tribunals established by the Constitution.
13. THAT Article 159 (2) of the Constitution obligate courts and tribunal to be guided by principles, which include- justice being done to all regardless of their status and the purpose and principles of the Constitution being protected.
14.THAT Article 259 of the Constitution provides that the Constitution shall be construed/interpreted in a manner that:
(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill
(c) permits the development of the law; and
(d) contributes to good governance.
15. THAT Clause 4 (2) of the Judicial Code of Conduct and Ethics1 provides that:
“A Judge shall exercise judicial authority independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.”
1 Legal Notice No. 132/2016
16. THAT Clause 4 (3) of the Judicial Code of Conduct and Ethics provides that a Judge shall not deviate from the law to appease public clamour, to avoid criticism, or to advance an illegitimate interest.
17. THAT Clause 4 (5) of the Judicial Code of Conduct and Ethics provides that a Judge shall have unfettered freedom to decide a case impartially, in accordance with his or her conscience and the application of the law to the facts.
18. THAT Clause 5 (1) of the Judicial Code of Conduct and ethics decrees that: ‘Impartiality is essential to the proper discharge of the judicial office and a Judge shall promote impartiality not only to the decision itself but also to the process by which the decision is made.’
19. THAT HON. MOHAMED K. IBRAHIM, HON. JB. OJWANG, AND HON. NJOKI S. NDUNG’U have been earlier admonished by the Judicial Service Commission with respect to their letter dated 24th September 2015 addressed to the Judicial Service Commission, whereupon the said judges withdrew their services to the people of Kenya by imposing a moratorium on all judicial operations with an immediate effect.
20. THAT on 9th May 2016, the Judicial Service Commission made a determination that the conduct of HON. MOHAMED K. IBRAHIM, HON. JB. OJWANG, AND HON. NJOKI S. NDUNG’U was conduct unbecoming of them as judges of the Supreme Court of Kenya and amounted to a misconduct. However, the same did not meet the threshold for their removal. These judges are therefore on NOTICE by the Kenyan people, in view of this previous determination by the Commission.
21. THAT HON. MOHAMED K. IBRAHIM, HON. J.B. OJWANG, HON. SMOKIN WANJALA AND HON. NJOKI S. NDUNG’U were part of the Bench that heard and determined Supreme Court Petition 7 of 2018- Hon. Mohamed Abdi Mahamud Vs Ahmed Abdullahi Mohamad & 4 Others; a decision delivered, by Majority- 4:2, [Hon. D.K. Maraga CJ and Hon. I. Lenaola SCJ Dissenting] on 15th February 2019.
22. THAT the Supreme Court [by a full Bench of Seven Judges] had heard interlocutory Applications and delivered a Ruling on 28th September 2018 to the effect that additional evidence would be taken by the Court to aid its determination of the Appeal before it and the question whether the Appellant was academically qualified to contest the Wajir Gubernatorial election in 2017. The decision to allow additional evidence took slightly more than 3 calendar months to be delivered by the Court.
23. THAT after additional evidence was allowed by the Court, the 2 Respondents immediately made an application for the Cross-examination (of the deponents of affidavits bearing additional evidence) in the Petition 7/2018. The Court dismissed this application on 12th November 2018. The decision to deny the 2 Respondents’ the right to cross-examine the Appellant grossly subverted the course of justice in the following ways:
a) It denied the 2 Respondents an equal right to confront the Appellant through cross examination; a right which was available and fully exercised by the Appellant at the High Court through his counsel against all of the 2 Respondents witnesses.
b) The Supreme Court aided and abetted the Appellant at evading cross-examination for the second time, before the courts to be tested on the veracity of his affidavit testimony.
c) The decision to disallow cross-examination of evidence that emerged for the first time before the Supreme court, meant the evidence was unchallenged contrary to article 50 of the constitution, the right to a fair trial, the right to cross examine and confront an adversary and equal protection of the law.
d) The2Respondentswerenotgrantedthesametreatmentasrequiredbylaw.Itis therefore true to conclude that the Appellant was not an ordinary litigant before the supreme court and appeared more as a GUEST of the court, with differential treatment at the high table.
24. THAT on 21st November 2018, the Supreme Court (by a Bench of 6 Judges- Hon. Maraga CJ & P, Hon Ibrahim, Hon Ojwang, Hon Wanjala, Hon Ndung’u and Leanola SCJJ), heard the Appeal and reserved the delivery of Judgement to a date to be communicated to the parties.
25. THAT on 15th February 2019 this Court, by a Majority of four (Hon. Ibrahim, Hon. Ojwang, Hon. Hon. Ndung’u & Hon. Wanjala SCJJ), out of 6 judges, allowed the Petitioner’s appeal, holding that the High Court did not have jurisdiction to hear and determine a question on his academic qualifications.
26. THAT on the basis of this sole finding, the Court affirmed the Petitioner’s declaration as Governor- elect; notwithstanding an undisturbed and unconsidered (by the Court) judgment of the High Court that the election in question contravened the Kenyan constitution and was fraught with illegalities and irregularities that affected the outcome.
27. THAT the High Court [Justice A. Mabeya presiding] found and held that: (i) the Governor did not have the requisite academic qualifications, to vie in the elections, and (ii) the IEBC committed several irregularities and illegalities which affected both the credibility and result of the election.
28. THAT the High Court in its judgment at paragraph 208, 209, 210 specifically found that:
“In the present case, the Court has found that the principle of the secrecy of the ballot was breached. The record of the election through the prescribed Forms 37A, 37B and 37C was neither accountable nor credible. That because of the irregularities committed by the 2nd and 3rd respondent, the elections could not be verified.
From the irregularities committed, the 3rd respondent cannot be said to have conducted the elections competently and efficiently. It employed election officials who were incompetent or negligent and whose conduct made the elections unaccountable and unverifiable. Accordingly, this Court holds that the election of Wajir County for the Governor’s seat was not conducted in accordance with the Constitution and the law. The totality of the irregularities that were proved, were so grave that they not only affected the credibility of the election but they affected the results of the election itself. No reasonable tribunal can uphold that election.” [Verbatim]
29. THAT upon Appeal, the Court of Appeal agreed with the High Court that the Governor did not have the minimum qualification to be a candidate in an election. This made it unnecessary, by operation of the doctrine of mootness or utility of scarce judicial time and resources, for the Court of Appeal to examine whether the election was vitiated by irregularities and illegalities on the part of IEBC. The result was to uphold the High Court’s decision to nullify the Election of the Governor.
30. THAT IEBC filed Petition No. 9 of 2018- IEBC & Another Vs Mohamed Abdi & 2 Others2 before the Supreme court, but on the hearing date before the Supreme Court, [on 21.11.2018] it withdrew the Appeal. The finding by the High Court that the Election contravened the Constitution therefore remains undisturbed to-date after this concession by the IEBC.
PARTICULARS OF GROSS MISCONDUCT
31. THAT the Majority Judgement authored by Hon. Mohamed K. Ibrahim, Hon. J.B. Ojwang, Hon. Smokin Wanjala and Hon. Njoki S. Ndung’u, and consequent Order affirming the Petitioner’s Declaration, was arrived at by:
2 Petition of Appeal dated *******
a. Gross intellectual dishonesty and judicial craft of interpretation;
b. Partial analysis of the matters before the Court and failure to take into account
evidence placed before the Court pursuant to its Ruling on 28th September 2018;
c. Abdication of judicial duty by failing to make pivotal findings on issues before the Court
so as to avoid a particular outcome and arrive at the only outcome it intended;
d. Gross/perverse disregard of the Constitution by adopting a construction that does
not accord with Article 259;
e. Establishing a county government in express contravention of the Constitution- by
disregarding numerous undisturbed findings that the Election in question had violated
the Constitution and affirming the Petitioner’s declaration as Governor-elect;
f. Applying the law, as interpreted in the Court’s own past decisions, selectively;
g. Corruption, bribery and improper communication between judges and parties/ and or
interested parties or their associates to the dispute.
32. THAT the Petitioner’s reading of the Judgement of the above Judges points to a pre- ordained outcome in the Appellant’s favour and the use of judicial craft and intellectual dishonesty to arrive at it; as demonstrated herein and therefore unconstitutionally ordained and coronated an undeserving litigant (guest of the court).
33. THAT in the Ruling3 permitting the Parties to adduce additional evidence, the Court unanimously stated that:
“We are unconvinced that the Appellant was accorded a fair hearing at both the trial Court and the Appellate Court with regards to his academic qualifications. The trial Court disregarded the consent of the pre-trial conference and the Appellant erroneously equated ‘cross-examine’ to ‘strict proof’. These culminated in his inability to properly state or defend his academic credentials. This invariably means that both superior Courts did not do justice to this case. This Court is inclined to remedy this situation.
 We must state that we find it curious, nay, inexplicable that, although the petition before the Court of Appeal contained several grounds of appeal challenging the election of the Appellant, the appellate court chose to shelve all but one, without any consideration whatsoever. As a result, the finding of that court and the only issue for determination in the appeal before this Court is a singular one: whether or not the Appellant had the requisite academic qualifications to run for the seat of Governor.
The additional evidence sought to be introduced are academic, educational and employment records of the Appellant. It is directly relevant to the single issue before 3 Pet. 7 & 9 [Consolidated] of 2018- Hon. Mohamed Abdi Mahamud Vs Ahmed Abdullahi Mohamad & 4 Others; Ruling delivered on 28th September 2018. the court and will most likely impact upon the Appeal. It seeks to remove any vagueness or doubt over the status of the academic qualifications in question and therefore has a direct bearing on the main issue in the suit.”
34. THAT despite having called for the evidence, the named Judges completely disregarded it by ousting the jurisdiction of the High Court to enquire into academic qualification, after realizing that the evidence on record would not assist them in arriving at a pre-determined outcome.
35. THAT despite having delineated the Issue of the Appellant’s academic qualification as the Singular issue for its determination, the named judges consciously refused/neglected to determine it.
36. THAT the 1st & 2nd Respondents in the matter- Ahmed Abdullahi Mohamad & Ahmed Muhumed Abdi, had tabled evidence before the High Court and the Supreme Court that disproved the Appellant’s plea that he was qualified to contest for governor as mandatorily required by section 22(2) of the Elections Act.
37. THAT as the evidence was not in the Appellant’s favour, the named Judges disregarded it in totality and refused to make any determination on the Appellant’s qualification, though an ouster of the Election Court’s jurisdiction.
38. THAT in ousting the High Court’s jurisdiction to determine the Appellant’s academic qualification, the Majority applied the Supreme Court decisions in SC Petition 30/2018- Silverse Lisamula Anami Vs IEBC & 2 Others and SC Petition 33/2018- Sammy Ndung’u Waity Vs IEBC & 3 Others in which it developed principles on the interplay between Article 88 (4) (e) and Article 105 of the Constitution.
39. THAT one of the principles set out by the Court in the Lisamula case was that,
“…in determining the validity of an election under Article 105 of the Constitution, or Section 75 (1) of the Elections Act, an election Court may look into a pre-election dispute if it determines that such dispute goes to the root of the election…”
40. THAT the named Judges failed to determine whether an issue of academic qualification ‘goes to the root of an election’ for the sole reason that such a determination would not lead it to the decision it had in mind.
41. THAT in so doing, the named Judges abdicated their judicial duty and acted partially, in contravention of Articles 159 of the Constitution, the Judicial Code of Conduct and Ethics and the Bangalore Principles of Judicial Conduct.
42. THAT the named Judges’ abdication of duty and failure to apply the law to the evidence before them was also a breach of Clauses 4 and 9 of the Judicial Code of Conduct and Ethics.
43. THAT the named Judges’ conscious decision to callously disregard the evidence before them was a violation of Article 159 (2) of the Constitution.
44. THAT the afore-mentioned Judges selectively applied the law (as interpreted by the Court in the Lisamula case) in invoking estoppel on a complaint that was not determined at ALL on merits.
45. THAT in Lisamula (supra), the Court had held that:
“the Election Court in determining whether an election is valid, may look to issues arising during the pre-election period only to the extent that they have previously not been conclusively determined, on merits, by the IEBC, PPDT or the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution.”
46. THAT in applying the Lisamula case in their decision, the afore-mentioned judges disregarded the Court’s own finding above and instead ruled divesting the High Court of jurisdiction on the Appellant’s qualification, notwithstanding the fact that in Petition 7/2018, the pre-election complaint had not been determined on merits by the IEBC; thus falling within the parameters the Court had set out for assumption of jurisdiction by the High Court on pre-election disputes.
47. THAT in so doing, the named judges occasioned the existence of inconsistent binding decisions of the Supreme Court; a situation that poses a grave threat to the administration of justice.
48. THAT as a result of the gross misconduct of the afore-mentioned judges, the Appellant (Mohamed Abdi) was allowed to continue serving in elective office; of which an academic qualification is paramount; without the court determining whether he had an academic
qualification; notwithstanding the Court’s unanimous Ruling4 that the Appellant’s academic qualification was the sole issue for determination.
49. THAT the gross intellectual dishonesty and judicial craft that permeates the decision of the named Judges is further evident on consideration of the manner in which it resolved the matter before it.
50. THAT in the Appeal5 before the Supreme Court, the following Orders had been sought by the Appellant:
a. An order setting aside the decision of the Court of Appeal and substituting the said order dismissing the Appeal in the Court of Appeal with an order allowing the appeal;
b. An order declaring that the findings by the Court of Appeal and the High Court regarding the Appellant’s educational qualifications unjustly deprived the Appellant the rights conferred upon him by Articles 38, 81 and 83 of the Constitution of Kenya;
c. An order declaring that the Appellant was qualified to contest for the position of governor of Wajir County during the General Election held on 8th August 2017;
d. A declaration that the Appellant was validly and constitutionally elected as the Governor of Wajir;
e. Costs of this Petition and of the proceedings in the High Court and Court of Appeal.
51. THAT by the (Majority) decision of the afore-mentioned Judges, the Court allowed the Appeal in the following terms:
i. The Petition of Appeal dated 3rd May, 2018 is hereby allowed.
ii. The Judgment of the Court of Appeal dated 20th April, 2018 is hereby set aside.
iii. For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of Governor for Wajir County is hereby upheld.
iv. The parties shall bear their own respective costs.
52. THAT the framing of an Order merely ‘affirming’ a declared result, instead of Orders that the Appellant was ‘validly and constitutionally elected’ and ‘was qualified to contest for the position of Governor) (as prayed for) is a succinct pointer of judicial craft, legal sophistry and gross intellectual dishonesty.
4 Ruling dated 28th September 2018.
5 Petition of Appeal dated 3rd May 2018; lodged in SC Petition 7 of 2018.
53. THAT the named Judges, having declined to consider the undisturbed findings on Electoral contravention of the Constitution and irregularities, could not in their true conscience rationalize an Order declaring that the Appellant was ‘validly and constitutionally elected’ as this finding could only be made if the findings on constitutional contravention were considered by the Supreme Court and overturned.
54. THAT the Majority, in full knowledge that the scope of interference with the finding [on constitutional and electoral law contraventions] was one of determining whether it was supported by the evidence borne in the trial record, declined to consider the findings on merit as the record stood witness to the constitutional and electoral law contraventions identified by the High Court; leaving these findings undisturbed.
55. THAT for that reason, the Court framed an amorphous Order ‘affirming a result’; which had long been decreed to be in contravention of the Constitution; the Court having declined an invitation to consider/or overturn the finding of constitutional and electoral law contravention.
56. THAT the framing of an Order ‘affirming a result declaration’ was a self-serving act and a deliberate ploy to ensure the Appellant succeeded; the law and evidence notwithstanding.
57. THAT in so doing, the aforementioned Judges were partial to the Appellant; in contravention of principles of their oath to judicial independence.
58. THAT by their decision, the afore-mentioned Judges disregarded Articles 38, 81 and 86 of the Constitution.
59. THAT by their decision, the afore-mentioned judges established a [county] government in contravention of the Constitution; notwithstanding the express terms of Article 3 (2) of the Constitution of Kenya, 2010 as their Order returned the Appellant to an elective office over which hangs a final binding edict that the election contravened the Constitution and the electoral law.
60. THAT by their decision, the afore-mentioned judges applied/interpreted the Constitution in a manner that did not
a. promote its purpose or principles;
b. advance the rule of law and the human rights and fundamental freedoms in the Bill of
c. permit the development of the law; or
d. contribute to good governance.
61. THAT acts of breach/disregard of the Constitution/law, abdication/dereliction of judicial duty and gross intellectual dishonesty constitute gross misconduct and unprofessional conduct; within the meaning of Article 168 (1) (e) of the Constitution of Kenya.
PARTICULARS OF IMPROPER COMMUNICATION WITH PARTIES TO A JUDICIAL PROCEEDING
62. THAT the conduct of Justice Smokin C. Wanjala and Justice Njoki S. Ndung’u, as shown below, went against all known principles of judicial independence and conduct.
63. THAT Justice Smokin C. Wanjala and Justice Njoki S. Ndung’u, were in constant communication with parties allied to the Appellant (Mohamed Abdi) while the case before the Court was pending.
64. THAT of particular interest are the following persons: [Telephone Numbers redacted and availed separately in confidence as annexed to this petition].
i. Kheira Omar Bardad- the Appellant’s spouse- Telephone No. 07222****9
ii. Hon. Adan Keynan- Telephone No. 07339****0
iii. Hon. Mohamed I. Elmi- Chief Administrative Secretary, Ministry of
Environment- Telephone No. 07218****8
iv. Hon. Aden Keynan’s bodyguard- Telephone No. 07270****3
v. Hon. Njoki Ndung’u- Telephone No. 07214****0
vi. Chemoi- Driver to Hon. Adan Keynan- Telephone No. 07201****6
65. THAT, by way of background, Hon. Adan Keynan is the serving Member to the National Assembly- Eldas Constituency whereas Hon. Mohamed Elmi is the immediate former Member of the National Assembly- Tarbaj Constituency. He now serves as the Chief Administrative Secretary in the Ministry of Environment.
66. THAT both Hon. Keynan and Hon. Elmi are seasoned politicians from Wajir county. In the run-up to the 2017 General election they rallied support behind Mohamed Abdi Mahamud and vigorously campaigned for his election as the Governor of Wajir County.
67. THAT through Hon. Keynan and Hon. Elmi, communication/contact was established with Justice Smokin Wanjala and Justice Njoki Ndung’u; with a view to channel bribes for a positive and intended outcome in Mohamed Abdi’s favour.
68. THAT Hon. Keynan and Hon. Elmi met in early January to plan how they would assist Mohamed Abdi get a favourable outcome from the Supreme Court.
69. THAT subsequent to this meeting, Kheira Omar Bardad contacted Hon. Elmi using her mobile phone after which Hon. Keynan’s driver- Chemoi met with Mohamed Elmi at Kencom House and they (Chemoi and Elmi) drove towards Yaya Centre to deliver money to Hon. Justice Njoki Ndung’u’s associates.
70. THAT subsequent to this meeting, Hon. Elmi contacted Hon. Njoki Ndung’u severally, on her personal line and the two spoke.
71. THAT Hon. Keynan and Hon. Smokin Wanjala have a personal relationship. They were both present in London in April 2018, when they were conferred with Honorary Doctorates by the Commonwealth University, London.
72. THAT as a result of these improper communications, the decision of the Supreme Court leaked and bloggers allied to/working for the Appellant (Mohamed Abdi) were posting the result/ and or outcome before the Judges walked into the Supreme Court, at 1455 hours on 15th February 2019, to deliver Judgement.
73. THAT Mohamednur Dima, under the Facebook pseudonym ‘Amor Mia’ posted a series of posts detailing the result before Justices Maraga CJ and Wanjala SCJ walked in to deliver the Judgment of the Court (at approximately 1458 hrs; viz:
a. At 0923 hrs- “Mwalimu usijali tano yako kamili”
b. At 1445 hrs- “Win for Mwalimu”
c. At 1451 hrs- “Mwalimu 4 against 2”
d. At 1500 hrs- “Maraga and Lenaola are for dissenting voice while the other four are for
74. THAT pursuant to Clause 5 (3) of the Judicial Code of Conduct, a judge is prohibited from initiating or considering ex parte communications on matters before the court or matters that are likely to be brought before the Court.
75. THAT pursuant to Clause 7 (1) of the Judicial Code of Conduct, propriety and the appearance of propriety are essential to the performance of judicial duties.
76. THAT pursuant to Clause 7 (2) of the Judicial Code of Conduct, a judge is obligated to avoid impropriety and the appearance of impropriety in all the judge’s affairs.
PARTICULARS OF CORRUPTION & UNDUE INFLUENCE
77. THAT during the pendency of proceedings before the Supreme Court, there have been corrupt dealings between the Appellant (Mohamed Abdi), through others, and some judges.
78. THAT Hon. Keynan, through his personal relationship with Justice Smokin Wanjala has been the main conduit of bribes to Supreme Court judges.
79. THAT sometimes in September 2018, an exchange of a 75 million-shilling bribe took place at JKIA parking base.
80. THAT the exchange took place between Sheikh Yunis Ibrahim (cousin to Hon. Keynan), of Yunis Osman and Mwiti Advocates, and Hon. Justice Smokin Wanjala.
81. THAT Sheikh Yunis drove to JKIA in a Toyota Landcruiser V8 vehicle with a box packed with Shs. 75 million [in Dollar currency] in the vehicle trunk.
82. THAT at the Airport, Sheikh Yunis pulled up alongside a Prado with tinted windows. The driver of the Prado picked the box of money and took towards the Prado to pass it to the occupant of the vehicle. On opening the door of the vehicle, Hon. Justice Smokin Wanjala was seated inside the vehicle.
83. THAT in early January 2019, Mohamed Abdi instructed the firm of Abdullahi Gitari & Odhiambo LLP), one of his Advocates in Pet. 7/2019, to urgently sell a property.
84. THAT the Property was sold for 60 million shillings; the Vendor being the Appellant’s son. The Property in question is registered under the Government Lands Act; N 48 (Vol) Folio No. 436/41, File No. 422.
85. THAT although the transaction was for sale of land at 60 Million shillings, the Petitioner has information that the money paid was 300 Million shillings.
86. THAT the purpose of the urgent sale was to raise money for bribes to Supreme Court Judges. During the time this transaction was executed, the delivery of the judgment of the Supreme Court was delayed/ stalled.
87. THAT once the transaction was completed and money paid to the Vendor, a series of money transfers were done by the firm of Abdullahi Gitari & Odhiambo LLP; to the following persons:
I. Mohamed Hassan Mire- bank account at a local Bank;
II. Dayib Ali Noor- bank account at a local Bank;
III. Yussuf Mohamed Omar- bank accounts at a local Bank.
88. THAT the transactions which were done on or about the week of 4th-7th February 2019 were meant to completely seal the deal. On 11th February 2019 at between 3-4 p.m. at a local bank at Eastleigh, the son of the Petitioner withdrew the sum of Kshs. 15 million which was given to Adan Keynan to pass on to Hon. Justice Smokin Wanjala. The money was withdrawn from an account of a company associated with the son of the Petitioner.
89. THAT on the 8th of February 2019, at a local bank, through the Account of a law firm that does considerable work for the County Government of Wajir and the Petitioner; substantial sums of monies were withdrawn for purposes of treating the judges and buying their influence.
90. THAT through the above persons, the proceeds of the sale of land were then channeled to Justice Njoki Ndung’u and Justice Smokin Wanjala to obtain a judgement favourable to the Appellant and to corrupt the streams of the justice system.
91. THAT the Appellant (Mohamed Abdi) has been to the Safaricom VIP Centre more than 40 times between mid-January and end-February 2019 to try and tamper with call records and/or erase the trail of communication between parties associated with him and the judges and or their associates.
92. THAT in early March 2019, Kheira received a call from 07221****7 and the caller threatened to swear an affidavit detailing the corruption and go public unless he received 2 million shillings.
PARTICULARS OF BREACH OF THE JUDICIAL CODE OF CONDUCT
93. THAT the above-named Judges demonstrated lack of impartiality; the elements of which include:
a. An objective determination of the matter before the Court;
b. A fair and just analysis of the matter before the Court;
c. A fair and just application of the law to the facts;
d. Equal treatment to litigants.
94. THAT in disregarding evidence and abdicating judicial function, as pleaded at paragraphs 24-34 above, the named judges were partial, in contravention of Clauses 4 and 5 of the Judicial Code of Conduct and Ethics.
95. THAT in being intellectually dishonest and selectively applying the law, so as to avoid the outcome borne by the evidence and a fair application of the law, the named judges breached all known principles of judicial independence and Clauses 4 and 5 of the Judicial Code of Conduct and Ethics.
96. THAT in particular Justice Mohamed Ibrahim was prevailed upon to change his mind on the 11th hour about his determination. He therefore took into consideration improper influence and extraneous factors at arriving at his decision.
97. THAT the above-named judges demonstrated a lack of integrity; the elements of which include:
a. Discharge of duty in a manner that is beyond reproach in the eyes of a reasonable observer;
b. Fidelity to the rule of law.
98. THAT the above-named judges demonstrated a lack of professionalism; the elements of which include:
a. Competence in discharge of judicial function;
c. Intellectual honesty;
99. THAT in acting in the manner that they did, as pleaded at paragraphs 35-52 above, the named judges breached Article 159 of the Constitution, dishonored their respective offices in such a perverse manner that warrants their removal from office.
100. THAT Justice Mohamed Ibrahim was top of his class for the 3 years at the University of
Nairobi and was accomplished in his practice before joining the Bench.
101. THAT Justice J.B Ojwang attended University of Nairobi, where he earned the LL. B and LL.M degrees, before proceeding to University of Cambridge where he earned the Ph.D. degree specializing in Comparative Constitutional Law. He is therefore accomplished in academia.
102. THAT Justice Smokin Wanjala was top of his class from the University of Nairobi. He has a Master of Laws (LL.M) from Columbia University New York. In 2000, he graduated with a Doctorate in Law (PhD) from the University of Ghent, Belgium. Amongst his numerous publications is a book entitled, “the Anatomy of corruption in Kenya.”
103. THAT whilst Justice Njoki Susanna Ndun’gu is an Advocate of the High Court of Kenya and holds both a Masters in Law degree (LL.M) in Human Rights and civil liberties and a Diploma in Women’s Rights. She is a former Member of the Pan-African Parliament and of the 9th Parliament in the National Assembly of Kenya, where she sat in the Standing Committees on Defense and Foreign Affairs, Administration of Justice and Legal Affairs and the Parliamentary Select Committee on the Constitution. She is the architect of the Sexual Offences Act 2006, and of amendments to the Employment Act 2007. Hon. Njoki Ndung’u sat as a member of the Committee of Experts that drafted the Kenyan Constitution.
104. THAT the actions of the named judges cannot be explained away as judicial fallibility/mistakes. They have, between them, more than 135 years of post-admission experience as advocates, 2 Doctorates (PHD/ Doctor of Laws), several Masters in Law (LLM) and 48 years’ worth of service on the Kenyan Bench.
105. THAT pursuant to Article 74 and the Third Schedule to the Constitution of Kenya, the named Judges took Oaths of Office to diligently serve the people and the Republic of Kenya and to impartially do Justice in accordance with the Constitution as by law established, and to the best of their knowledge and ability, protect, administer and defend this Constitution with a view to upholding the dignity and the respect for the judiciary and the judicial system of Kenya and promoting fairness, independence, competence and integrity within it.
THE PETITIONER HUMBLY PRAYS:
A. THAT the Judicial Service Commission be pleased to determine the actions of HON. MOHAMED K. IBRAHIM, HON. JACKTON B. OJWANG, HON. SMOKIN C. WANJALA and HON. NJOKI S. NDUNG’U amounted to a violation of the constitution, gross misconduct and breach of the Judicial Code of Conduct and Ethics and Oath of Office; and consequent to this determination initiates the necessary procedures for their removal for office.
B. THAT upon such consideration as prayed for in A above; the Judicial Service Commission be pleased to act in terms of article 168(2), (3) and (4) of the Constitution
to recommend to the President of the Republic of Kenya to establish a Tribunal to investigate and make its determinations on the infractions disclosed in this Petition.
C. THAT the relationship and networks between Justice Njoki. Ndung’u and Hon. Mohamed Elmi be investigated;
D. THAT the relationship and networks between Hon. Adan Keynan and Justice Smokin Wanjala and other Supreme Court Judges be investigated;
E. THAT Sheikh Yunis Ibrahim, Adv be investigated for his roles, the land transaction through which money was raised and contacts/networks to supreme court judges between August 2018 and March 2019.
F. THAT a multi-agency investigative team be constituted to investigate the persons, contacts and networks between the phone numbers mentioned above, and the transactions between the disclosed persons at the banks mentioned above.
DATED at NAIROBI this 8TH day of MARCH 2019.
Your Humble Petitioner _________________