The Supreme Court has dismissed an appeal by Lady Justice Mary Muthoni Gathoni Gitumbi seeking to have the decision and recommendation of the tribunal appointed to inquire into her inability to perform the functions of her office due to mental incapacity revoked.
The supreme court on Tuesday, September 12 affirmed the tribunal’s finding that the judge was unable to perform the functions of her office due to mental incapacity.
The judges further ruled in favor of the tribunal’s recommendation to the President for the justice Mary’s removal from office.
Justice Mary was nominated to serve as a Judge of the Environment and Land Court (ELC) in 2012.
According to court papers, the Judicial Service Commission (JSC) through one of its commissioners, reported that it had received information from unnamed lawyers before Mary’s appointment that she had a medical history of mental illness.
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As such, JSC resolved to have Mary Muthoni, who was then a nominee for appointment as a judge, undergo a medical examination to determine her suitability for the position.
Justice Mary Muthoni’s Medical Assessment
According to the medical report, the judge was found capable of discharging her duties as she had been declared fully recovered by her psychiatrist.
“The Judge was sane, coherent in speech, had a good memory of current affairs, and was fairly eloquent in addressing issues raised by the board members,” reads court documents in part.
The Board then concluded that, “even though records indicate that the Judge had a history of mental illness, she had been declared by her psychiatrist as having fully recovered and was therefore fit to take up the position of a Judge.”
Subsequently, justice Mary was appointed as a Judge of the ELC and posted to Kakamega Law Courts.
In January 2013, she was transferred to Milimani Law Courts and then to the Judiciary Training Institute (JTI) in January 2018.
Delays on Delivery of Rulings
Nonetheless, after the Judicial Service Commission received complaints concerning delays in the delivery of rulings and judgment, they held a meeting on May 2, 2019, and resolved to make further inquiries into the matter
In this regard, the commission sought reports of justice Mary’s performance from the acting Registrar of the ELC, the Director of the JTI, and the acting Director of Planning and Organizational Performance (DPOP).
Upon further deliberations, JSC resolved that the judge appears before a second Medical Board to examine her fitness to continue serving as a Judge.
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In its report dated July 24,2022, the second Medical Board concluded that the lady justice was medically unfit to serve as a judge.
“Based on the fact that the Hon. Lady Justice Mary Gitumbi was on treatment for Schizophrenia with evidence of several relapses, evidence of lack of insight 4 during the period of relapses leading to absence from duty. She also had evidence of below-average performance. She is not fit for further service as a Judge,” reads the court papers.
In a petition dated May 19, 2022, Justice Mary Muthoni wanted the court to set aside the recommendations by the tribunal in its entirety and dismiss the petition for her removal from service.
