The Supreme Court Of Kenya has ruled that Hon. Lady Justice Mary Muthoni Gitumbi, a Judge of the Environment And Land Court is mentally incapacitated to hold her office and perform her duties as a Judge.
In a judgement dated September 12, 2023 the five Supreme Court Judge bench consisting of Justices: Ibrahim, Wanjala, Njoki, Lenaola and Ouko, the Court directed President Ruto to exercise his powers under Article 168 (1)(a) and remove Judge from office.
In 2021 Judicial Service Commission recommended to the then President of Kenya, Uhuru Kenyatta to remove the Judge from office citing mental illness.
The Judge, however, appealed to the Supreme Court to reverse the JSC decision.
She stated that the applicable standard of proof is that of ‘beyond reasonable doubt’ for the allegation of mental incapacity the intermittent standard being ‘below beyond reasonable doubt but above a balance of probability’ for allegations of inability to perform the functions of the office of a Judge. She submitted that the burden of proof in this matter was not discharged.
On mental incapacity, she submitted that the required standard of proof was not met. She contends that it was not established that she suffered mental incapacity. She submits that the Tribunal erroneously concluded that mental illness amounted to proof of mental incapacity.
She contends that the test of ‘severity of illness’ was a wrong test for determining mental capacity.
Further, she submitted that the Tribunal erred in law and fact by finding that the Assisting Counsel had proved the element of mental incapacity beyond reasonable doubt.
Consequently, it was her submission that the allegation that she was unable to perform the functions of an office of a Judge was not established.
She contends that the Tribunal did not attempt to set out the functions of the office of a Judge, and that the Tribunal did not single out any function that she did not or could not perform.
She submitted that the finding that she was unable to perform the functions of her office is inconsistent with the evidence adduced.
The Supreme Court Judges however ruled that the tribunal established ground for the removal of the Judge due to her inability to perform functions of her office arising from her mental incapacity.