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Chief Justice Martha Koome could be walking a tight rope after a petition was yesterday filed before the Judicial Service Commission (JSC) seeking to remove her from office over the appointment of 22 members of the Tax Appeal Tribunal.

The petitioner, Michael Otieno, accuses the Chief Justice of allegedly flouting the Judicial Code of Conduct and Ethics by failing to adhere to the law on the appointment of members to the Tax Appeal Tribunal.

The petitioner accuses Koome of discrimination by appointing more members than the stipulated requirement under section 4 of the Tax Appeal Tribunal Act.

In his petition, Otieno, a resident of Homa Bay, accuses Koome of failing to comply with the express provisions which required her to appoint not less than 15 members and not more than 20 as per the law.

“Hence the judge violated Article 3, 10 and rule 3(5) of Code of Conduct of Judicial officers as read with Public officers ethics Act hence defeating public confidence,” he says.

The petitioner also faulted Koome for burdening taxpayers with her decision to appoint two more members to the tribunal who were not budgeted for.

“Actions of the Chief Justice in the appointment of the tax appeal tribunal are indeed illegal, null and void and hence unfit to hold public office,” says Otieno.

The latest complaint by Otieno could be part of the wider scheme targeted against Koome, coming barely days after the Executive and Kenya Kwanza coalition allied politicians openly accused the Judiciary and its judges of being corrupt.

President William Ruto has in the last one month mounted a war against the judicial arm of government, accusing it of sabotaging his government’s agenda. He has even vowed to disregard court orders he says are motivated by ‘judicial impunity’. However, late last month, JSC, led by Koome called for a meeting with Ruto to discuss the issues he had raised over alleged corruption in the Judiciary.

Barrage of attacks

Koome’s response was prompted by a barrage of attacks against the Judiciary by the Kenya Kwanza leadership.

The Chief Justice confirmed that she was committed to addressing any cases of misconduct against any judicial officer in her capacity as JSC chairperson.

She warned that comments from the Executive and Legislature mulling for disobedience of court orders are met with setting up the country for chaos and anarchy.

On January 24, Ruto and Koome held a meeting at State Hhouse in a bid to end the rows.

Before the meeting, Deputy President Rigathi Gachagua had vowed to ensure the removal of Justice Esther Maina whom he accused of unceremoniously declaring his fortune proceeds of crime, a move claimed was meant to taint his image. The DP further claimed that Justice Maina denied him the opportunity to be heard against all the rules of evidence and that she even refused his application to cross-examine the investigator of his case.

In 2022, Justice Maina ruled against Gachagua’s application to have his accounts unfrozen by the Assets Recovery Agency.

Instead, the court ruled that he forfeits to the state the Sh202 million in his accounts, as they were proceeds of corruption.

Gachagua, however, got back his money when together with President William Ruto, they ascended to power following the 2022 general election. The DP however backtracked on his declaration to allegedly give dialogue a chance.

But two days after Gachagua had announced to drop his threats, trader by the name Kepha Kefa Odiero, filed a petition before JSC claiming the judge demanded the bribe to facilitate the lifting of the preservation orders relating to his Ksh53 million held at the National Bank of Kenya and his two high-end motor vehicles.

Through lawyer Ndegwa Njiru, the trader claims that he met the student Anthony Manyara, who is also the leader of the University Students Union, at Jaffery sports Ground situated along Lavington in Nairobi county on September 7, 2023, at 8;30 pm.

Yesterday, in the complaint filed at the JSC, Otieno says that while appointing persons to serve at the tax appeal tribunal, the Chief Justice failed to be honest in execution of powers conferred to her by the Tax Appeal Tribunal Act based on powers conferred to her as a judicial officer contrary to rule 12(1) of the judicial officers code of conduct hence unfit to hold the office of a judge.

“Koome has failed the test of being selfless based solely on the public interest being demonstrated with honesty in the execution of public duties while appointing the members of the Tax Appeal Tribunal,” the petitioners says.

Otieno has accused the Head of the Judiciary for failing to be transparent, diligent, and committed to upholding the rule of law in her duties which is core in fostering public trust in the legal system in the country.

“The actions of the Chief Justice in appointment of Tax Appeal Tribunal members violates Article 166(2)(c) of the Constitution and section 13 of the Leadership and Integrity Act, a judge, judicial officer, and judicial staff shall observe and maintain the following ethical and moral requirements,” Otieno states in his petition filed at JSC.

The petition for removal of CJ Koome from office comes months after she appointed new members of the Tax Appeals Tribunal.

In a Gazette notice dated May 10, 2023, Koome said that the new members appointed through the Judicial Service Commission (JSC) will serve for a term of three years.

“In exercise of the powers conferred by section 4 of the Tax Appeals Tribunal Act, 2013, the Judicial Service Commission appoints members of the Tax Appeals Tribunal, for a term of three years, with effect from the 10th May, 2023,” Koome said.

The new members include Ogaga Gloria Awuor, Ongeti Walter Juma, Ololchike Sankale Spencer, Diriye Abdullahi Mohamed and Vikiru Timothy Bunyali.

Other appointees include Komolo Erick Onyango, Kashindi George Ashiono, Ng’ang’a Eunice Njeri, Muga Christine Anyango, Makau Martin Mutiso James, Terer Boniface Kibiy and Bernadette Muthira Gitari.

The Tribunal hears and determines appeals from a person who disputes the decisions of the commissioner on tax matters arising under the tax law provisions.

The tribunal hears tax matters from taxpayers, both individual and corporate persons, tax agents, advocates and Kenya Revenue Authority.