ONE of the most painful periods in Kenya’s judicial history has been re-opened, with an appeal by former judge Tom Mbaluto against his 2008 dismissal from the bench for corruption. The former judge was dismissed after a tribunal sat to hear allegations against him and recommended his removal from office. Dissatisfied with the outcome, however, he has brought two court challenges contesting his removal, the second of which has now been finalized by Kenya’s court of appeal.

TOM Mbaluto was a well-known figure in Kenyan legal circles. He sat in the Milimani commercial court in Nairobi and presided in several high-profile matters. But the eye of the public and the media settled on this judge more critically when a tribunal was appointed to investigate corruption allegations against him.

Those investigations and his eventual dismissal in 2008 were part of what has become known in Kenya as the time of “radical surgery”. It was applied to the judiciary, both judges and magistrates, and though it began in 2002, in some respects its impact is still being felt. The “radical surgery” was intended to root out corruption among judicial officers, a number of whom were suspended and then investigated. Some were cleared and stayed on. Others, including Mbaluto, were dismissed.

In its 2011 review, “Justice Sector and the Rule of Law”, the Open Society Initiative for Eastern Africa wrote that one of the greatest threats to the rule of law in Kenya has been the lack of judicial independence. Because of this problem the “purge” of judges including Mbaluto was “partially welcomed”, said the report. But this “purge” was also “heavily criticized” because, in the view of critics, it failed to respect “basic due process” and thus implicated some judges even though they were not involved in corruption.

This mixed response, identified by the report, in relation to the “radical surgery” performed on the judiciary would perhaps explain some of the opening remarks made by the three judges of the court of appeal in their decision last week. The judges were considering Mbaluto’s challenge to his failed high court bid testing the validity of that 2008 removal. Explaining the broader background of the appeal – including the past attempts to deal with allegations of misconduct, lack of integrity and “outright corruption” in the judiciary – the three judges referred to the period of “radical surgery” and commented: “(D)epending on who you ask, (this) was either a noble initiative designed to exorcise the judiciary of the cancer of corruption, or a Machiavellian scheme, deviously contrived to rid the judiciary of unpopular or unwanted judges.”

The three appeal judges, however, scrupulously avoid any comment of their own on the situation. They deal strictly with the grounds raised by Mbaluto and hold him just as strictly to the legal processes related to his appeal.

They briefly summarise the steps taken before Mbaluto’s removal. This began with his “naming” in a 2003 judicial “integrity committee” report, as someone who should be investigated further along with other judicial officers. It continued via a special tribunal set up in 2006 to consider the allegations against him and at which he was represented by counsel.

In their re-telling of this story, the appeal judges showed how everything was done in conformity with the legal requirements of the time. They also briefly recounted the complaints received against him, and for anyone who has not kept up with this particular story the committee’s findings are both alarming and bizarre.

A total of 27 witnesses were heard on the allegations. These were related to a 1990 civil case he heard in the high court, Kisii. The committee reported: “In Kisii the judge was cited for corruption, that he solicited and received bribes … . He is said to have asked the defendant for Kshs 50 000.00 and one bag of millet so that he could rule in his favour. The defendant refused to give anything. He solicited money from the plaintiff. He is said to have received Kshs 60 000.00 from the plaintiff at Kisii Club where he was seen by the defendant who was in the company of one Professor Chacha Nyaigoti Chacha. The committee found the allegations credible. They disclose corruption and want of integrity and they also amount to gross misbehavior.”

Other related findings were that he allowed communications between himself and the plaintiff in a case in which he was presiding, without the other party being present or even knowing about it. In doing so he showed the likelihood of bias and was advancing the interests of one side over those of the other.

Having received the tribunal’s report and recommendations the then-president Mwai Kibaki removed Mbaluto from the judiciary on 31 October 2008. In the years that followed, however, Mbaluto has tested the outcome by way of judicial review in the high court. That court found against him in June 2013 which led in turn to his challenge at the court of appeal whose three judges have now returned their own decision. They investigated all the grounds on which the challenge was brought, but ultimately upheld the high court decision and dismissed the appeal with no order as to costs.

It may be too early to know whether this is the end of the road for Mbaluto’s litigation, but he has not disappeared from public life since his removal from the bench. Far from it. Among others, he was a member of the panel charged with selecting members of Kenya’s Independent Electoral and Boundaries Commission in 2016. The panel’s work included inviting applications from would-be candidates, then drawing up a shortlist and interviewing those who made the final cut. The panel’s mandate was to ensure that the candidates would be scrupulously fair and unbiased in their approach.

It’s also interesting to note how the Kenyan media refer to him since his removal from office: he is called variously “former judge Mbaluto” and “retired judge Mbaluto”, a description which is not really accurate, given the circumstances of his leaving office – it might even indicate that his removal has not left a particularly serious stain as far as the public is concerned.

First published by the Judicial Institute for Africa (Jifa) on 7 June 2018 at