Njoki Ndung’u defends herself in case over retirement age protest

Supreme Court judge Njoki Ndung’u has defended herself against allegations of misconduct during a protest against the Judicial Service Commission’s decision to fix judges’ mandatory retirement age at 70.

The judge told a court on Monday that she was unaware of the illegal strike by Supreme Court judges that happened four years ago.

Justice Ndung'u said she did not refuse to work or handle any case, as alleged by city lawyer Apollo Mboya, who wants her removed from office.

While testifying before Justice Weldon Korir at the High Court in Milimani, she also said Supreme Court judges never resolved to go on a go-slow in reaction to the JSC’s decision.

TIFF

Justice Korir heard that the protest between September 29 and October 2015 emanated from a tiff between the apex court judges and their employer over the retirement of justices Phillip Tunoi and Kalpana Rawal.

The commission wrote a letter to Justice Tunoi, asking him to stop sitting, pending a case on the matter, while Justice Rawal was placed on leave due to a dispute.

During the go-slow, the top court's judges failed to hold regular sittings and to hear appeals.

While being cross-examined by her lawyer Andrew Musangi and the JSC’s Charles Kanjama, Justice Ndung'u denied boycotting work as alleged by the petitioner.

Mr Mboya wants her removed from office for allegedly suspending her services and downing work tools.

His petition has since been consolidated with one by Justice Ndung'u, in which she contests the JSC's move to admonish her over gross misconduct.

QUORUM HITCH

Justice Ndung’u told the court that following the exit of Justices Tunoi and Rawal, the Supreme Court was dogged by a quorum hitch.

As a result, the judges sat and decided to write to the JSC, advising it on the ramifications of the directive.

“The hearing of appeals, which requires a minimum of five judges, did not proceed but various rulings and judgments were delivered. I was in the office and I had not been empanelled in any fresh case,” she explained.

Lawyer Kanjama questioned how the quorum hitch occurred given the court had seven judges and that with the exit of two, five were in place to conduct the sittings that required a five-judge bench.

He said he had a case that was supposed to proceed but upon enquiring at the registry on why the court was not sitting, he was told that the judges were on a go-slow.

Justice Ndung'u explained that most of the remaining judges were away on other official duties.

She said the then Chief Justice Willy Mutunga was in Nyeri County while Justice Smokin Wanjala was in Arusha, Tanzania.

She also noted that she had to cancel her maternity leave due to the crisis.

DIALOGUE

The court heard that justices Mutunga and Wanjala advised their colleagues to pursue dialogue with the JSC without taking the confrontational approach as the matter involved public interest.

In line with this, Justice Ndung'u was questioned on the contents of a letter dated September 24, 2015, which judges wrote to the JSC cautioning that "interference with justice Tunoi would lead to a moratorium".

Before drafting the letter, the judges met on September 22 and 23 and agreed to express their concerns about quorum issues.

Justice Ndung'u said the meeting did not discuss issues related to justices Tunoi and Rawal but rather deliberated on the impending crisis.

The JSC never responded to their letter.

The court was also told that Justice Ndung’u received a show-cause letter from the JSC as she admitted that the employer was grappling with smaller infractions by judicial officers that did not amount to gross misconduct.

Former Chief Justice Willy Mutunga will testify in the case on Tuesday.