Court stops JSC from hearing Judge Sankale's removal petitions

Appellant Judge Sankale Ole Kantai/JUDICIARY

The High Court has barred the Judicial Service Commission (JSC) from proceeding to hear petitions seeking the removal of Court of Appeal Judge Sankale Ole Kantai, ruling that the process would violate his constitutional right to a fair hearing.

Delivering the judgment on Friday, September 19, Justice Chacha Mwita held that moving ahead with the petitions while related cases are still pending in court would “sacrifice the right to fair hearing at the altar of expediency.”

He noted that the disputed documents the JSC might rely on are directly relevant to Petition E334 of 2021, a case in which Justice Kantai challenges his arrest and alleged rights violations.

“Considering the circumstances of Petition E334 of 2021, and even though the petition seeks declarations on violations of rights and fundamental freedoms, the contents of the disputed affidavit are relevant in the determination of that petition and may also be relevant to the matters before the respondent,” Justice Mwita observed.

The court therefore issued a declaration that the JSC’s decision to proceed with petitions lodged by Busia Senator Okiya Omtatah and Tob Cohen's sister, Gabriel Hannah Van Straten, dated 2021, seeking Kantai’s removal, threatens his right to a fair hearing.

It further issued an order of prohibition restraining the JSC from considering the petitions until the High Court determines the said petition.

"An order of prohibition is hereby issued prohibiting the JSC from considering petitions lodged by Okiya Omtatah and Gabriel Hannah dated April 4 and October 4 and 5, 2021, respectively, for the removal of Justice Sankale Ole Kantai from office as a judge of the Court of Appeal until the determination of petition E334 of 2021," Justice Mwita ruled.

Each party was ordered to bear its own costs.

The petitions before the JSC stem from allegations linking Justice Kantai to the 2019 murder of Dutch businessman Tob Cohen, whose body was found buried in a septic tank at his Nairobi home.

In February 2020, Kantai was arrested by the Directorate of Criminal Investigations in connection with the killing, but was later released without charge after the Director of Public Prosecutions said there was insufficient evidence to prosecute.

Kantai has consistently denied any wrongdoing.