The Supreme Court has upholded retired President Uhuru Kenyatta’s decision to suspend former Environment and Land Court judge Mary Muthoni Gitumbi on mental illness grounds.
In a judgment delivered on Tuesday, the Apex court, also dismissed the petitioner’s decision to challenge a report by a Tribunal that recommended Gitumbi’s suspension.
The Court ruled that the tribunal did not go beyond its authority by determining whether the judge was unable to perform her duties due to mental impairment adding that the Tribunal proved beyond a reasonable doubt that the judge’s illness hampered her performance.
“The Court finds that on the basis of the medical evidence on record and the Petitioner’s own admission, the Tribunal established beyond reasonable doubt that the Petitioner had a mental illness, schizophrenia, with a severity that it terms as chronic and deteriorates with every relapse,” the court said.
Gitumbi was suspended in 2021 by Uhuru following recommendation from the Judicial Service Commission.
The Judge, however, appealed to the Supreme Court to reverse the JSC decision.
In her appeal, Gitumbi stated that the applicable standard of proof is ‘beyond reasonable doubt’ for allegations of mental incapacity, and ‘below beyond reasonable doubt but above a balance of probability’ for allegations of inability to perform the functions of a Judge.
Gitumbi contended that the test of ‘severity of illness’ was a wrong test for determining mental capacity.
She further said the finding that she was unable to perform the functions of her office was inconsistent with the evidence adduced.
“If an employee’s mental illness is adversely affecting their ability to perform their duties, in some instances, the employer, following due process, may terminate the employee’s contract of employment or recommend the employee’s removal from office,” the Supreme Court ruled.
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