Judge Njoki Ndung'u to face off with former boss

Supreme Court Judges from left, Njoki Ndung'u, Jackton Ojwang and former Chief Justice Willy Mutunga during a court proceeding on June 2, 2016 at the Supreme Court, Nairobi. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • Mr Apollo Mboya wants JSC directed to investigate Justice Ndung’u’s conduct for participating in an illegal strike.

  • The strike was to protest the decision of JSC to retire then Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi after attaining the constitutional retirement age of 70 years.

  • Former CJ Dr Willy Mutunga stated that notes by Justice Ndung’u of a meeting held on October 6, 2015 were found to be inaccurate.

The acrimonious split that marked the first Supreme Court bench is expected to replay as former Chief Justice (CJ)  Dr Willy Mutunga and Judge Njoki Ndung’u face off in open court on Tuesday.

High Court judge Justice Chaacha Mwita allowed prayers for both the former CJ and Justice Ndung’u to testify in the consolidated petitions 204 and 218 of 2016 by former Law Society of Kenya (LSK) chief executive Apollo Mboya and Justice Ndung’u respectively.

Mr Mboya had filed the petition to challenge JSC’s decision to admonish rather than recommend to the president for the formation of a tribunal to investigate the conduct of Justices Jackton Ojwang’ and Ndung’u for participating in an illegal strike and thereby paralysing the Supreme Court’s operations.

The strike was to protest the decision of JSC to retire then Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi after attaining the constitutional retirement age of 70 years.

ILLEGAL STRIKE

Mr Mboya wants JSC directed to investigate Justice Ndung’u’s conduct for participating in an illegal strike.

JSC says in a statement filed in court that the petition by Mr Mboya does not disclose any ground that would lead to the removal of a judge.

The commission said it investigated the matter and found that the claims made in the petition did not meet the threshold required by the Constitution. On the other hand, Justice Ndung’u in her petition argues she was not accorded fair hearing.

Justice Mwita directed that the matter be mentioned on Monday to confirm the availability of Justice Ndung’u to take the witness stand on Tuesday. Dr Mutunga is also tentatively set to be cross-examined on the same day. 

WITNESS STAND

The Judicial Service Commission (JSC) which is represented in the matter by lawyer Charles Kanjama applied to cross-examine Justice Ndung’u while Justice Ndung’u had applied to have Dr Mutunga take the witness stand in the event the judge allows JSC’s application.

Justice Ndung’u will be cross-examined on the contents of the minutes of the Supreme Court meeting that have been filed in court while the judge wants to cross-examine her former boss after he swore an affidavit on August 7 disowning assertions by Justices Jackton Ojwang’ and Ndung’u that the decision by the Supreme Court judges to go on strike in 2015 was a collective one and also that Justice Ndung’u falsified the minutes of an October 6, 2015 meeting of then Supreme Court bench.

In his affidavit, Dr Mutunga had stated that “the said letter (notifying the withdrawal of services by a section of Supreme Court judges) was not authorised by a collective decision of the Supreme Court judges, and ought to be treated as the sole work of the three signatories to the said letter.”

INACCURATE

The former CJ also stated that notes by Justice Ndung’u of a meeting held on October 6, 2015 were found to be inaccurate.

He also stated that while the Deputy Registrar was in attendance for the formal part of the meeting and duly recorded the minutes, Judge Ndung’u stepped in to take notes for the latter portion of the meeting.

“I recall very clearly that the notes taken by Judge Njoki for the latter portion of the said meeting were challenged in a subsequent meeting of the Supreme Court judges and rejected on the ground of inaccuracy. Thus, the minutes Justice Ndung’u were discarded, he said in his affidavit.  

In response to Dr Mutunga,  Justice Ndung’u accused her employer, the JSC, of “acting in concert with the petitioner Apollo Mboya to orchestrate these proceedings against me and my fellow judges with the aim of condemning the judges of the Supreme Court unheard.”