A High Court ruling has cleared businessman Kamlesh Pattni of all criminal charges relating to the multi-billion-shilling Goldenberg scandal. Photo/FILE NATION MEDIA GROUP
By PETER LEFTIE pmutibo@ke.nationmedia.com
Posted Saturday, April 20 2013 at 23:30
Posted Saturday, April 20 2013 at 23:30
IN SUMMARY
- File containing ruling goes missing for 18 days in a scheme likely to defeat any avenue for appeal
- Law Society of Kenya asks why judge facing probe was allowed to continue hearing case
A storm has erupted over a High Court ruling which cleared businessman Kamlesh Pattni of all criminal charges relating to the multi-billion-shilling Goldenberg scandal.
The Law Society of Kenya on Saturday questioned the circumstances under which Judge Joseph Mutava was allowed to continue hearing the case and deliver the judgment, yet he is being investigated by the Judicial Service Commission over his handling of criminal cases facing Mr Pattni.
It has also emerged that the file containing the ruling went missing from the High Court registry and only resurfaced after 18 days in what lawyers believe is part of an elaborate scheme to defeat any avenue for appeal.
The ruling was apparently delivered on March 25 but the file only resurfaced last week, well after the 14-day window for filing appeals.
“This is a big drawback in the fight against corruption. We have already filed an appeal because this judgment has confirmed the complaint we raised about Judge Mutava with the Judicial Service Commission.
It confirms that Kamlesh Pattni can cut deals with judges,” said lawyer Nelson Havi who represented the International Centre for Policy and Conflict which filed a petition at the JSC seeking to have the judge removed from office.
It also emerged that the JSC had recalled all files relating to the cases facing Mr Pattni to enable it conduct investigations into the petition lodged by LSK on behalf of various litigants, raising questions about how they ended up in the judge’s chambers.
“All the files relating to the Pattni cases were recalled by Judicial Service Commission when these complaints were lodged. We are wondering when they were released to the judge again for him to even write this judgment,” said LSK secretary Apollo Mboya.
“A committee was formed and the complainants even made submissions before it. Midstream, we learnt that the chairman Justice Isaac Lenaola had resigned and Smokin Wanjala appointed to replace him. Months down the line, we are yet to get the outcome of the investigation,” he added.
Mr Mboya maintained that the sub-committee recommended that a tribunal be formed to investigate Judge Mutava but that the JSC was yet to sit and look at the recommendation with a view to adopting it or dismissing it.
However, this was denied by a member of the sub-committee who refused to go on record on grounds that the case was “very sensitive”.
Judge Mutava sparked a storm when he ruled that Mr Pattni would not get fair trial over the case for, among other reasons, delays in the prosecution of the Sh5.8 billion fraud case.
But Director of Public Prosecution Keriako Tobiko immediately said he will appeal the judgment.
“Mr Pattni’s fundamental rights and freedoms have been violated by the State in several respects,” said Judge Mutava.
He said the delay in starting prosecution, the flawed report on the Goldenberg scandal, lost documents, and unavailability of witnesses could not result in a fair trial.
The judge was referring to the report by the Commission of Inquiry led by former Court of Appeal Judge Samuel Bosire, which found Pattni to be the mastermind and central beneficiary of the scandal.
The judgment brings to an end one of the country’s longest criminal cases, which began in 1993 when Pattni was charged with conspiracy to defraud the government of billions of shillings.
In his ruling, he said there was no longer a complainant after Pattni returned the property in question to the Central Bank of Kenya.
Judicial Service Commission Secretary Gladys Boss Shollei declined to comment on the matter, saying she was on leave.
She instead referred the Sunday Nation to the Judicial Service Commission registrar who promised to return our calls once she was through with a meeting.
She had not called by the time we published this story.
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