Barely a year after he was found unsuitable to serve in the Judiciary, former High Court judge Said Juma Chitembwe has won a Sh8 million award on a separate matter for malicious prosecution over a botched sale of land belonging to the National Social Security Fund (NSSF).
Justice Janet Mulwa has ordered the Attorney General to pay the fallen judge following his arrest and arraignment in 2009.
She said the former judge faced indignity and humiliation after he was arrested at his home at Ukunda in South Coast on December 28, 2009, flown to Nairobi and detained overnight before being charged the following day.
The criminal charges were terminated in 2011 after the trial court found that he and his co-accused had no case to answer.
According to Justice Mulwa, the manner in which the arrest was carried out, negatively affected Mr Chitembwe and his status in society at the material time.
“All these were not necessary and should not have happened in the first instant had the AG taken keen interest in the court pronouncements prior to the humiliating events leading to the judge’s arrest, detention and prosecution,” said Justice Mulwa.
Mr Chitembwe was the secretary of the NSSF board until his appointment as a judge in 2009. He was charged on December 29, 2009, with conspiracy to defraud the pension fund and abuse of office over a botched sale of NSSF land.
Incidentally, Mr Chitembwe was accused of fraudulently making a payment of Sh8 million to a law firm, a sheer coincidence of the amount the court has ordered the AG to pay him for malicious prosecution.
The five plots at the junction of Uhuru Highway and Kenyatta Avenue were to be purchased by Delta Square Limited, a Kenyan real estate firm in a joint venture with Indian tycoon Mukesh Ambani’s subsidiary.
Mr Chitembwe said as the secretary to the Board, he had to oversee the performance of the transactions by following up on the sale agreements and transfer of the properties.
The deal collapsed after the purchaser allegedly discovered that one of the plots was smaller on the ground as opposed to what had been stated in the title.
The purchaser declined to complete the transaction and NSSF’s external lawyers declared a dispute demanding a reduction in the agreed purchase price.
Mr Chitembwe also confirmed having authorised payment of the sum of Sh112.6 million to the Ministry of Land for clearance of land rent.
The dispute was widely publicised and the Kenya Anti-Corruption Commission (KACC), the predecessor of the Ethics and Anti-Corruption Commission (EACC), instituted investigations of the alleged loss of taxpayers’ money held at NSSF.
Upon investigations, EACC recommended the prosecution of both Mr Chitembwe and the then NSSF Managing Trustee for the irregularities in the aborted sale.
When the trial commenced, the prosecution called a total of 35 witnesses but the suspects were acquitted under Section 210 of the Criminal Procedure Code.
In the ruling, Justice Lucy Nyambura (then a principal magistrate), ruled that there was no case to answer.
Mr Chitembwe submitted that despite knowledge of his cooperation throughout the investigations, the anti-graft body failed to summon him to their offices and instead frisked him from his rural home after issuing a well-publicised statement of having charged a sitting judge, flew him to Nairobi, kept him in custody at Kilimani Police Station before arraigning him the following day.
The court was informed that NSSF filed a case at the High Court against Delta Resources Limited and Delta Square Limited, but the matter was settled by consent judgment and the properties were re-transferred to the fund while all monies incurred by the pension fund by way of costs were refunded.
Justice Mulwa said there was no reasonable and probable cause for the arrest, confinement and prosecution of Mr Chitembwe and, therefore, the prosecution was maliciously actuated by the relevant agencies under the office of the AG.
Last year, a tribunal found Mr Chitembwe guilty of gross misconduct and recommended his removal as a judge.
