A Supreme Court judge and former Law Society of Kenya (LSK) Chief Executive Officer Apollo Mboya have filed counter appeals with the Judicial Service Commission over the recent decision to admonish three judges for misconduct.
Through lawyer James Singh, Justice Njoki Ndung’u is contesting JSC’s decision to reprimand her and Justices Jackton Ojwan’g and Mohammed Ibrahim.
This comes as the Supreme Court could be staring at a quorum crisis as the clock runs down on Dr Willy Mutunga’s tenure as the country’s Chief Justice (CJ).
In addition, the Court of Appeal is also set to rule on the retirement of judges on May 27 that could send home Deputy Chief Justice Kalpana Rawal and suspended judge Justice Philip Tunoi.
Justice Ndung’u is contesting her admonition along with her colleagues for engaging in alleged unbecoming behaviour when they were seen to have withdrawn their services in solidarity with Justice Tunoi, whom JSC had asked to proceed on retirement having attained the age of 70 years.
Justice Tunoi and Deputy Chief Justice Kalpana Rawal have filed cases in court arguing that their retirement age should be 74 years.
The initial petition was filed by Mr Mboya in October 2015.
In the May 10 letter addressed to her employer, Justice Ndung’u sets out seven grounds she wants clarified.
“We have instructions to call on the JSC to clarify the following urgently,” the letter reads.
The seven grounds consist of disclosure of the material evidence considered which led to JSC finding her, along with the other judges, to have misconducted themselves; the specific misconduct she was found guilty of; the basis on which the JSC proceeded to determine the matter given that no hearing was conducted contrary to the earlier assurance from the JSC and that herself and Mr Mboya were not afforded a hearing in line with the constitutional requirements.
In addition, she wants the JSC to clarify the basis upon which the employer “proceeded to hear and determine a single petition in a piecemeal manner by determining one aspect of it and leaving another aspect pending without a known time frame for its conclusion.”
The judge is also asking for a clarification on the constitutional, statutory and legal basis for the procedure followed by the JSC in hearing and determining the petition and legal basis for the finding of a misconduct and the resultant admonition.
“Upon receiving the JSC’s clear and comprehensive response, we will be able to advise our client further on this matter,” the letter states, adding that any further consideration of the petition be suspended until the clarifications are made.
Counter to the judge’s appeal, the petitioner Mr Mboya is also asking the JSC to reconsider its resolution to admonish the three judges.
Instead, the former LSK boss argues that the punishment of admonition is not backed by the constitution at Article 168. The Article, he argues, talks about removal.
“It is my considered view that upon determining the misconduct of the judges the Judicial Service Commission could have very well misdirected and misconducted itself in admonishing the judges instead of recommending to the President the appointment of a tribunal to investigate their conduct,” Mr Mboya’s letter of May 13 reads in part.
Mr Mboya, therefore, wants the JSC to furnish him with the hearing report as well as the letters of admonishment latest by Wednesday.
“Take notice that in case the report and the admonishing instrument given to the concerned judges is not availed within three days from the date hereof, I will initiate the necessary petition in the National Assembly against the JSC,” Mr Mboya states.
The battle over the petition could be the earliest signs of a politically charged recruitment of the new CJ.
Dr Mutunga will leave office on June 16 and the JSC – judiciary’s administrative arm – has already announced that they expect a new person to take office some four months later in October.
“The retirement will occasion a vacancy in the Office of the CJ and JSC will immediately initiate the recruitment process. The JSC has deliberated on this matter and prepared a comprehensive plan on the successful management of this process,” the Chief Registrar of the Judiciary Anne Amadi announced in a press statement on May 10.
By provisions in Section 5(4) of the Judicial Service Act, deputy CJ Rawal will act as the CJ for a period not exceeding six months pending the appointment of a new person.
However, the fate of Justice Rawal remains in the hands of the Court of Appeal, which is expected to deliver a judgement on May 27 on a suit she filed contesting retirement age for judges.
The case was originally filed by Justice Rawal and suspended Justice Tunoi who were contesting the decision of the JSC to retire them at 70 years.
Already, in the absence of Justice Tunoi who is suspended, the Supreme Court only has six judges.
With the exit of Dr Mutunga on June 16 and in the event that the Court of Appeal rules that Justices Rawal and Tunoi should proceed on retirement, the Supreme Court will be thrown into a crisis as the remaining four judges cannot constitute a bench.
The situation has been exacerbated by reports that one of the current Supreme Court judges last week took a two-month sick leave to seek treatment in South Africa for undisclosed health problems.