Supreme Court upholds removal of Justice Mary Gitumbi
The Supreme Court has okayed the removal of Judge Mary Gitumbi over mental incapacity.
In a ruling delivered by a five-judge bench, the Apex Court upheld the decision of the tribunal appointed by former President Uhuru Kenyatta that Justice Gitumbi can not ably discharge the functions of a judge at the Environment and Land Court division.
"We have established that the petitioner (Judge Gitumbi) is unable to perform the functions of the office of a Judge which require immense alertness, endless concentration, presence, a good frame of mind to observe the demeanour of witnesses, back-breaking research, writing/typing skills, this is not to mean that she cannot undertake other duties pertaining to the legal profession," ruled the court.
However, the judges said that the affected judge can discharge other legal duties not necessarily those of a judge of the court.
"This petition of appeal fails because the Tribunal duly established the ground for the removal of the petitioner due to inability to perform functions of the office arising from mental incapacity, " the judges ruled.
Gitumbi had challenged the decision of the tribunal appointed by the retired Head of State to remove her from the judiciary.
The tribunal in a report dated April 13, 2022, arrived at a decision that she can not perform the judges of a judge because of her mental challenge.
"Tribunal concluded its hearing and deliberations and, in a report dated 13th April 2022 stated that the allegations, that the judge has mental incapacity and therefore unable to perform the functions of the office of Judge of the ELC, were established to the required standard of proof. The Tribunal unanimously recommended that the petitioner be removed from office of judge of ELC," the Tribunal ruled.
The tribunal comprised three judges and two psychiatrists amongst others.
Aggrieved by the decision of the Tribunal, the judge lodged an appeal at the Supreme Court she was disfranchised by the decision of the tribunal.
She argued that the tribunal failed to evaluate all the evidence she presented before it.
"Tribunal erred in law and fact when it equated mental illness to mental incapacity and thereby failed to consider the requisite standard of proof set for establishing mental incapacity as required in Article 168(8)(1)(a) of the Constitution," Gitumbi argued.
Further, she aimed that the Tribunal erred in law by relying on biased opinions, unsubstantiated hearsay evidence, and extraneous factors not pleaded in the petition or proved in arriving at its findings.
But the Supreme Court concurred entirely with the tribunal findings that the judge was properly removed from office.
"We note that despite the Petitioner’s ailment, she exuded great determination in the functions of her office as a Judge whenever she was able to do so. We point out that the Petitioner’s mental illness that led to mental incapacity in the performance of her functions is not her fault or her own doing," the five-judge ruled.
