Justice Mutava’s troubled legacy in the Goldenberg affair

This story has significance for readers across Kenya and beyond.

The death of former High Court judge Joseph Mbalu Mutava closes the life of a man whose short career on the Bench left one of the longest shadows over Kenya’s search for accountability. Mutava, who died on Saturday, August 22, was to his wife, Kibwezi East MP Jessica Mbalu, and their family, a loving personality.

But Mutava had a second life that was exposed in his judgments, official inquiries and the consequences of the power he exercised. The most outstanding was his handling of the case against Kamlesh Pattni and the Goldenberg scandal. It was Mutava’s decision that stopped Pattni’s prosecution, shut the courtroom door on one of Kenya’s greatest corruption scandals and denied the country the closest opportunity it had come to hearing the evidence tested in a criminal trial.

The tragedy of Goldenberg was not simply that public money disappeared but that three decades later, Kenya still lacks a definitive judicial account of who authorised the scheme, who benefited and how an operation dependent on the state was protected by the state. What Kenya never obtained, thanks to Mutava, was a completed trial which would have produced a verdict after witnesses had testified and been cross-examined.

Justice Mutava’s judgment helped make certain that this would never happen in Pattni’s case, since, according to him, Pattni’s rights were being violated through a lengthy trial.

Goldenberg was built around an export-compensation programme in which Kenya lost Sh5.7 billion through fake compensation. At a time when President Moi’s government badly needed foreign exchange, exporters were rewarded with a percentage of the currency they supposedly brought into the country. Pattni and Goldenberg International hatched a scheme in which they created paperwork on fictitious gold and jewellery export, although Kenya produced no gold in quantities remotely matching the exports declared on paper.

As it emerged later, Pattni’s scheme faked export forms, bank entries and official approvals and created the appearance that currency had been earned abroad and remitted to Kenya. Goldenberg received preferential compensation beyond the ordinary rate, while his Exchange Bank became central to circulating funds that could return disguised as export earnings and attract Treasury payments.

The entire scheme depended on the Central Bank, Treasury, Customs, banks and the political establishment to succeed. And that is how Goldenberg became a corridor in which state coffers were looted to finance the 1992 Kanu campaigns. The wider scandal contributed to monetary instability and inflation as ordinary Kenyans endured lost jobs, shrinking incomes and deteriorating services.

Bosire Commission

Amidst lots of pressure, from within and without, Pattni and the Goldenberg architects were finally arrested and charged in 1993. But this only opened a civil and criminal circus that was played out in the court rooms over years until 2003 when President Kibaki appointed the Bosire Commission of Inquiry to investigate the fraud. The Bosire commission rendered its report in August 2006 and described Pattni as a “thief” and called for his prosecution.

As a result, the state lodged criminal case No 518 in 2006, Republic vs Kamlesh Mansukhlal Damji Pattni and others over the stealing of Sh5.6 billion. There was also a civil case of Sh2.1 billion arising from the tussle over Grand Regency Hotel between CBK and Pattni’s Uhuru Highway Development Company.

Worried that the noose was tightening on him, Pattni wrote to Attorney-General Amos Wako, requesting to enter a plea bargain agreement and had been told to provide full disclosure. But with the new Constitution and the prosecution aspect removed from Wako’s office, the Director of Public Prosecutions rejected Pattni’s proposal. That was January 27, 2012 and stage was now set to finally hear the case.

It was this time that Pattni sought leave to quash the DPP’s direction. The other order was to prohibit the Chief Magistrate from hearing or proceeding with Pattni case and to further prohibit the Attorney General, DPP, the Commissioner of Police and Chief Magistrate from “arresting, charging, prosecuting, suing or commencing proceedings” against Pattni or his associated companies, including Goldenberg and in relation to the Goldenberg Affair.

At first, it looked like a long shot. But it wasn’t. It was a well calculated move and it brought in Justice Mutava.

The matter was filed just four days before the High Court began its August vacation. It was not accompanied by a certificate of urgency, as would ordinarily have been required. On August 10, Pattni’s long-time lawyer, the late Bernard Kalove, filed the certificate together with an application requesting that the matter be heard during the vacation.

Although Justice Mutava was then the vacation duty judge in the Commercial and Admiralty Division, the application, being a judicial-review matter, was placed before him. This was despite the fact that the designated vacation duty judge with jurisdiction over such applications was Justice Florence Muchemi. Nevertheless, Justice Mutava heard the matter and granted Pattni leave, ex parte, to commence judicial-review proceedings. The substantive application was subsequently filed on August 28, 2012.

In mid-September, Pattni’s lawyer wrote to the Deputy Registrar requesting that the matter be mentioned before Justice Mutava “for directions” on the grounds that it was “part-heard” before him. In a separate letter, Kalove claimed that “some clarifications [were] required by all parties” regarding the orders the judge had issued. That assertion was untrue. Kalove later conceded that the statement had been made through what he described as an “oversight.”

The effect of the correspondence was to steer the case back to Justice Mutava. The Deputy Registrar of the Judicial Review Division, where the file was held, authorised its removal and transmission to him, ostensibly for mention. Justice Mutava later maintained that Justice Korir had asked him to handle matters arising from that division. The tribunal that investigated Justice Mutava, however, found that this explanation could not stand because Justice Korir was not the duty judge at the time.

The tribunal ultimately concluded that it was Kalove who had “schemed to have the matter placed before the judge [Mutava]” and later manoeuvred to ensure that it remained before him after the court vacation.

The tribunal that later investigated Mutava found that the judge had irregularly, inappropriately and knowingly, in collusion with others, caused the matter to be allocated to himself without the knowledge or consent of the duty judge and head of the Judicial Review Division. It was a grave finding. Case-allocation systems exist precisely to prevent parties from selecting judges—or judges from selecting cases.

Even the cause list concealed more than it revealed. Rather than appearing under Pattni’s familiar name, the matter was listed as “K. Damji v Attorney-General.” It was also presented in a manner that obscured its character as a judicial review case. None of this appeared to trouble Justice Mutava. When Pattni’s counsel and a representative of the DPP appeared before him, the supposed “clarification” was not sought. Mutava retained the case and directed that it be determined through written submissions.

The International Centre for Policy and Conflict, led by Ndung’u Wainaina, attempted to intervene. It opposed terminating Pattni’s prosecution without recovery of the billions allegedly lost and questioned why the case was outside the Judicial Review Division. The objections failed.

By then, questions about his handling of the file had reached the Judicial Service Commission. He was transferred to Kericho but proceeded to write the judgment while the JSC was inquiring into his conduct concerning the same matter. The tribunal later treated that decision to continue as a separate act of misconduct. A judge conscious of the institutional stakes could have recused himself and allowed another judge to determine the application. Mutava did not.

Once the matter was before him, Justice Mutava received submissions from the parties and requested that the court file be sent to Kericho, where he had been transferred, so that he could prepare his judgment. The file had been placed in a cabinet in his former Nairobi chambers. He later collected it, over a weekend, and took it with him to Kericho.

The movement of the file would become one of the allegations investigated by the tribunal. Significantly, however, the tribunal ‘s finding was not only that Justice Mutava had irregularly caused the file to be removed from safe custody and taken to Kericho but the manner in which the case had been channelled to him and on his decision to write the judgment while the Judicial Service Commission was already investigating his handling of the matter.

“These entire actions amount to either wanton impunity or extreme naivety,” the tribunal later concluded. “The facts point to a clear determination on the part of the judge to deal with the matter irrespective of the damage that action could cause.”

Justice Mutava’s judgment was dated March 20, 2013, and delivered on his behalf several days later. It allowed Pattni’s judicial-review application and prohibited the Attorney-General, the Director of Public Prosecutions and the police from continuing with Criminal Case No. 518 of 2006.

The order went even further. It barred the State from prosecuting Pattni and his associated companies in any other matter arising from the Goldenberg affair. On May 3, the magistrate’s court formally struck out the charges and discharged the securities. Pattni walked free—not because a trial had tested the evidence and found the allegations unproved, but because the High Court had prevented the trial from proceeding.

Justice Mutava offered a constitutional justification for the decision. He held that the State’s prolonged delay had violated Pattni’s right to a fair trial. Witnesses had died, memories had faded and the passage of time had diminished Pattni’s ability to defend himself. The judge also found that the Bosire Commission’s description of Pattni as “a perjurer, a forger, a fraudster and a thief” had impaired his constitutional presumption of innocence.

Mutava further reasoned that the settlement involving the Central Bank of Kenya and Pattni’s surrender of the Grand Regency Hotel had weakened the rationale for continuing the prosecution. He relied partly on earlier decisions involving former Vice-President George Saitoti and former Central Bank governor Eric Kotut, whose prosecution over Goldenberg-related allegations had also been stopped.

With that Justice Mutava did not merely quash defective charges or direct the State to remedy specific violations. Rather, he erected a shield against both the existing case and any future prosecution of Pattni and his companies arising from Goldenberg. The judgment transformed the State’s delay into permanent immunity. It allowed the collapse of Kenya’s investigative and prosecutorial institutions to work to the advantage of the person they had failed to prosecute.

Justice Mutava knew that the decision would provoke outrage. He wrote:

“The discharge of a judge’s constitutional mandate is never easy. It is not meant for the faint-hearted. Any reaction arising from a decision made by a judge should be seen as one of the many vagaries of the calling, as long as the judge’s appreciation of the law and facts, his analysis and conclusions and, above all, the judge’s conscience, remain sanctified. I am therefore comfortable and well prepared for any such reaction.”

On May 20, 2013, the Judicial Service Commission petitioned the President to suspend Justice Mutava and appoint a tribunal to investigate his conduct. President Uhuru Kenyatta subsequently suspended him and established the tribunal.

After years of litigation over its composition and authority, the tribunal heard 29 witnesses and delivered its report in 2016. Of the six allegations placed before it, three were proved. It found that Justice Mutava had colluded with others to have Pattni’s judicial-review application irregularly allocated to him; that he had proceeded to write the judgment while the JSC was investigating his handling of that same matter; and that, in a separate case, he had attempted to influence a ruling by Justice Leonard Njagi.

A fair assessment of Justice Mutava’s legacy must rest on the tribunal conclusion that he had not been an “innocent bystander” in the manner in which Pattni’s case reached him and was determined.

In March 2019, a five-judge Supreme Court bench dismissed Mutava’s appeal and upheld the tribunal’s recommendation that he be removed from office. His removal then became final.

Justice Mutava’s death marks the end of a man who partly buried the Goldenberg scandal after initial attempts by politicians, civil servants, bankers, investigators, prosecutors and years of calculated delay. By undertaking the final rites, Justice Mutava placed a judicial seal upon its grave. His order gave Pattni what the evidence had never given him: freedom from the risk of a full criminal reckoning and which allowed Pattni to go Scott free.

Reporting originally appeared via Nation Africa. Read the full source for additional context.