Supreme Court Justice Jackton Ojwang has declined to appear before the Judicial Service Commission (JSC) to respond to various allegations against him including being bribed to deliver favourable rulings and being a partial arbitrator, the Nation has established.
Sources in the commission said a team that has been investigating his conduct intends to recommend to President Uhuru Kenyatta to form a tribunal to investigate his conduct, setting in motion the process of removing him from office.
The judge faces two charges and the JSC insists that he appear in person before it as the matters are only within his knowledge.
In the first complaint, he is accused of authoring a judgment with respect to the Sony Sugar belt and in return he was rewarded by Migori County Governor Okoth Obado, who built a road to his private residence on the outskirts of Migori town.
Before becoming governor, Mr Obado served as chairman of the Kenya Sugar Board.
In the second matter, which was raised by former Law Society of Kenya CEO Apollo Mboya, Justice Ojwang alongside justices Mohamed Ibrahim and Njoki Ndung'u are accused of writing a judgment despite a pending disciplinary matter.
In his response to the JSC, Justice Ojwang says he has constitutional immunity and that the commission has no mandate to investigate the issue, a position that the commissioners said left them with no alternative but to recommend the setting up of a tribunal to investigate his conduct.
"Instead of appearing to clear his name he refers to us as service providers of unschooled people," said a commissioner, who requested not to be named.
The Nation has established that the JSC will issue its ruling this week.
Justice Ojwang, who has been at loggerheads with JSC commissioners, accuses them of acting with malice against him. "From the whole context of this matter and from the full context of the ill-intent against me such as is quite evident, I will not be appearing before the well known committee members of the Judicial Service Commission," Justice Ojwang wrote on March 15.
Instead, he wants his lawyers -- from the law firm Njoroge Nani Mungai and Company -- to take care of the matter, a position the JSC has declined, stating that the charges are against him as an individual and required him to appear in person and clarify the matters.
The commission declined his lawyers' request dated March 14 to appear for him.
In a hard-hitting letter showing the judge's low opinion of the JSC commissioners, Justice Ojwang disparages the petitions, arguing that the decision he has made offers him immunity.
He also disparages two senior citizens who are witnesses in the petition.
"More recently, you have served upon us charges in such a category, even in respect of the Supreme Court's judgments, which are protected by the Constitution's express immunities... ," he writes.
"Once that purely preliminary constitutional point had been resolved by the Supreme Court -- a decision safeguarded by immunity in terms set out in paragraph two herein above (referring to immunity of court decisions) certain persons, out of private, undisclosed interests, initiated protests and recriminations against just one of the five justices of the Supreme Court -- Justice J.B. Ojwang," he adds.
In the other claim, the judge defends himself, saying, "Justice Ojwang was not part of the Supreme Court bench that, then, proceeded beyond the earlier formal determination and heard and determined the main grievance which had related to interests in the Sony Sugar belt area... ."
The judge argues that "very strangely, however, those same vested interests, now acting through coached, perjured witnesses, came before the Judicial Service Commission averring that the said Justice J.B. Ojwang remains a bad man, since then Migori County Governor, his friend, has constructed a private and personal tarmac (or murram?) road to serve his countryside home exclusively ... "
In his letter, the judge accuses the commission of arranging with senior police officers and surveyors to travel to his residence near Migori town "to take photographs of the road network, showing major and the minor roads."
He requests that those photographs be supplied to his advocates.
Justice Ojwang defends himself from any wrongdoing, stating: "it is further evidence that, in the two and half kilometres or so of earth roads running in the direction of my said Migori suburban home, there are numerous homes (maybe 50 or 100), served by these roads, which also serve travellers from all directions heading towards Migori town."