Chitembwe v Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court
The bottom line
#Supreme Court affirms removal of a judge for gross misconduct, clarifying judicial immunity limits.
What this practically means
#The Supreme Court of Kenya dismissed an appeal by a High Court judge facing removal. The judge had discussed cases with litigants at his home, advised on appeals, and acquired property from a case he decided. The court said judicial immunity does not protect such actions. It also ruled that covert recordings by participants in conversations can be used as evidence. The standard of proof in judicial removal cases is an intermediate one, not as strict as criminal cases.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Tribunal had jurisdiction to review the proceedings before the JSC
- 2.Whether the Tribunal failed to uphold the doctrine of judicial independence and immunity
- 3.Whether the electronic evidence admitted by the Tribunal was unlawfully or illegally procured in violation of the petitioner’s constitutional rights under articles 31 and 50(4) of the Constitution
- 4.Whether the allegations against the petitioner were proved to the required standard
- 5.Who should bear the costs
Key legal issues
#Whether the Tribunal had jurisdiction to review proceedings before the JSC
The Tribunal had no jurisdiction to interrogate events that took place before its appointment; its mandate was limited to inquiring into the allegations in the petition submitted by JSC.
The court held that the Tribunal's jurisdiction was founded on Article 168(7)(b) of the Constitution and the Gazette Notice appointing it, which mandated it only 'to consider the Petition for the removal of the Judge...that was submitted by the Judicial Service Commission and to inquire into the allegations therein.' The Tribunal could not arrogate to itself jurisdiction to review a concluded constitutional process before JSC. If the petitioner felt aggrieved by JSC proceedings, his recourse was to the High Court under Article 165(3)(b), not to the Tribunal.
Whether the Tribunal failed to uphold the doctrine of judicial independence and immunity
The Tribunal did not fail to uphold judicial independence and immunity because the petitioner's conduct was outside the lawful performance of judicial functions and therefore not protected by Article 160(5).
The court found that judicial immunity under Article 160(5) protects only acts done in good faith and in the lawful performance of a judicial function. The petitioner's conduct—discussing cases with litigants at his private residence, advising on grounds of appeal, and acquiring an interest in property that was the subject of a case he had determined—was clearly outside and in excess of his mandate as a trial judge. These were acts of bad faith, not protected by judicial immunity. The Tribunal properly limited its inquiry to conduct outside judicial functions.
Whether the electronic evidence was unlawfully or illegally procured in violation of Articles 31 and 50(4) of the Constitution
The audio and video recordings did not violate the petitioner's right to privacy under Article 31, and their admission did not render the proceedings unfair under Article 50(4).
The court held that the right to privacy is not absolute. By willingly discussing matters with parties and third parties, and by appearing on a live television interview, the petitioner voluntarily removed the issues from the private realm to a public platform. The recordings were made by participants in the conversations, not by third parties or law enforcement. The recordings were of great probative value. The court also rejected the entrapment argument because no law enforcement officers or government agents were involved in obtaining the recordings.
Whether the allegations against the petitioner were proved to the required standard
All six allegations were proved to the required intermediate standard of proof, and the Tribunal's findings were affirmed.
The court applied the intermediate standard of proof established in Mutava and Muya cases—neither beyond reasonable doubt nor on a balance of probabilities. The court re-evaluated the evidence and found: (1) the petitioner had a relationship with Hon Sonko and failed to disclose it or recuse himself from the consolidated petitions; (2) the petitioner lacked integrity by discussing grounds of appeal with a litigant; (3) the petitioner acquired a proprietary interest in parcel no 779 through a proxy after having determined the succession cause; (4) the petitioner subverted justice by commenting on pending matters and advising a litigant. The court found no basis to interfere with the Tribunal's conclusions.
Legal principles established
#- Judicial immunity under Article 160(5) does not protect acts done in bad faith or outside judicial duties.
- The standard of proof in judicial removal proceedings is an intermediate standard, not beyond reasonable doubt or balance of probabilities.
- A tribunal appointed to investigate a judge cannot review proceedings before the Judicial Service Commission.
- Covert recordings made by a participant in a conversation are admissible if they are probative and not obtained in violation of constitutional rights.
- A judge who acquires an interest in property that was the subject of a case they determined breaches judicial ethics.
Court orders
#- 1.The petition of appeal dated February 15, 2023 is hereby dismissed
- 2.The Tribunal’s finding that the Petitioner’s conduct was in breach of the Judicial Service (Code of Conduct and Ethics) Regulations 2020 and amounted to gross misconduct contrary to article 168(1) (b) and (e) of the Constitution is affirmed
- 3.The Tribunal’s recommendation to the President for the petitioner’s removal from office under article 168(1)(e) of the Constitution is hereby affirmed
- 4.No orders as to costs
- 5.We hereby direct that the sum of Kshs 6,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the petitioner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Tribunal appointed under Article 168(5)(b) of the Constitution
- Jurisdiction invoked
- Article 168(8) of the Constitution
Relief refused
#A declaration that the Judicial Service Commission lacked the locus standi to initiate removal proceedings against the petitioner on its own motion
The court found that JSC's own-motion initiation was 'perfectly permitted by the force of article 168(2) of the Constitution'
A declaration that the Judicial Service Commission acted in violation of the requirements of articles 47 and 50 of the Constitution
The court found that JSC proceedings were conducted in consonance with the Constitution and the law, upholding rules of natural justice
A declaration that the allegations made against the petitioner were not proved to the required standard
The court found that all six allegations were proved to the required intermediate standard
A declaration that the petitioner’s action did not amount to gross misconduct and/or misbehaviour
The court affirmed the Tribunal's finding that the conduct amounted to gross misconduct
A declaration that the findings and recommendation of the Judicial Service Commission be quashed with an order directing that the petitioner resumes his duties
The court dismissed the petition and affirmed the Tribunal's recommendation for removal
Costs
No orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In both the Mutava and Muya cases, we set the standard of proof in removal proceedings as an intermediate one; neither beyond reasonable doubt nor on a balance of probabilities, with the burden of proof being on the assisting counsel to bring proof to the required standard in proof of the alleged misconduct.
From a plain and textual reading of article 160(5) of the Constitution, and section 6 of the Judicature Act, judicial immunity is not absolute nor does it cover improper conduct aimed at furthering personal interests.
A judge makes a decision against a party and goes ahead to discuss the case with that litigant, is contra bonos mores and it is immaterial that the window for lodging a notice of appeal had lapsed.
By willingly discussing the matters in question with parties and third parties and on a public forum, being a live television interview, the petitioner voluntarily removed the issue from the private realm to a public platform.
Key timeline
#Practical implications
#Tribunal's limited jurisdiction on JSC
Lawyers representing judges in removal proceedings should note that a Tribunal cannot review JSC processes. Any challenge to JSC proceedings must be brought directly to the High Court under Article 165(3)(b), not to the Tribunal. This limits the scope of defenses available at the Tribunal stage.
Covert recordings as evidence
Businesses should be aware that covert recordings made by a participant in a conversation (e.g., a meeting) may be admissible in court if they are probative and not obtained illegally. This is relevant for internal investigations or disputes where one party records discussions without the other's consent.
Limited judicial immunity for misconduct
Individuals cannot assume judges are immune from consequences for actions outside their judicial role. If a judge improperly discusses cases or acquires property from a case they handled, they can be removed. This reinforces accountability for judges in Kenya.
Frequently asked questions
#What is the standard of proof for removing a judge in Kenya?+
The Supreme Court set an intermediate standard: not beyond reasonable doubt (as in criminal cases) nor on a balance of probabilities (as in civil cases). It is a higher standard than civil but lower than criminal.
Can a judge be removed for discussing a case with a litigant in Kenya?+
Yes, if the discussion is outside the courtroom and involves advising on appeals or other improper conduct. The Supreme Court said such actions are not protected by judicial immunity and can amount to gross misconduct.
Are secret recordings admissible as evidence in court in Kenya?+
Yes, if the recording was made by a participant in the conversation and is of great probative value. In this case, covert recordings by a litigant and a witness were allowed because they did not violate the judge's right to privacy.
What is the role of the Judicial Service Commission in removing a judge in Kenya?+
The JSC investigates complaints against judges and submits a petition to the President if it finds grounds for removal. The President then appoints a Tribunal to inquire into the allegations. The JSC's process is separate and cannot be reviewed by the Tribunal.
Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nyaki & another v Pijey Investments Limited & 4 others (Environment and Land Case 17 of 2021) [2026] KEELC 3507 (KLR)[2026] KEELC 3507 (KLR)3 Jun 2026
- Sheria Mtaani na Shadrack Wambui & another v Muguna & another; Karanja & 10 others (Interested Parties) (Petition E212 of 2024) [2025] KEELRC 1540 (KLR)[2025] KEELRC 1540 (KLR)22 May 2025
- Sonko v Clerk, County Assembly of Nairobi City & 11 others[2024] KESC 43 (KLR)26 Jul 2024
- Lockwood Girls High School v Wasike (Civil Appeal 38 of 2018) [2024] KECA 360 (KLR)[2024] KECA 360 (KLR)22 Mar 2024
- Alwala & 3 others v Kenya Universities Staff Union (Petition E083 of 2023) [2023] KEELRC 3223 (KLR)[2023] KEELRC 3223 (KLR)7 Dec 2023
Cite this brief
#Cite this brief
Caselaw, "Chitembwe v Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court", Case Analysis (2023). Petition E001 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/114/eng@2023-12-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.