The Judicial Service Commission (JSC) has spared Supreme Court judge Njoki Ndungu the embarrassment of having to face a tribunal.
In a statement read by Chief Justice David Maraga, the JSC said a complaint against Justice Ndungu had been dropped by her accuser, lawyer Apollo Mboya.
The commission, however, recommended the probe of three High Court judges over alleged gross misconduct, incompetence and abuse of office.
The Chief Justice, who chairs the commission, was flanked at the media briefing by vice-chairperson Mercy Deche and commissioners Patrick Gichohi, Emily Ominde and Felix Koskei.
More than three years
Mr Mboya had been invited by the commission in March but declined, stating that he had lodged the matter against Justices Ndungu and J.B Ojwang’ in October 21, 2015, and wondered why it had taken more than three years for the JSC to make a decision.
On Justices Martin Mati Muya, Lucy Waithaka and D.K. Njagi Marete, the commission said they would face tribunals over gross misconduct allegations and breach of the Constitution.
Justice Muya was among 83 magistrates sent home in 2003 during the radical surgery by Justice Aaron Ringera. He was later cleared and appointed a judge.
The complaint against him was filed by NIC Bank, a defendant in a matter before the High Court in Bomet and Alfred Kipkorir Mutai and Kipsigis stores. The judge, after numerous adjournments, is reported to have granted an injunction and reserved his reasons for a period of five months.
This was despite pleas by the bank that the vehicles, which were part of security, were being sold, occasioning the lender loss.
“After hearing the matter, the Commission found that the petition had disclosed bias, abuse of office, incompetence and gross misconduct in the manner in which the honourable judge handled the matter,” Justice Maraga said.
The complaint against Justice Marete was filed by Kenya Tea Growers Association in a matter involving the Kenya Plantations and Agricultural Workers Union and other parties.
The CJ said that, while aware that the case had been handled by another judge, Justice Marete went ahead and issued orders which had the effect of setting aside the orders of a fellow judge.
On Justice Waithaka, the commission said he issued two conflicting judgments in the case pitting Jonathan Kimutai against Philip Lelei. The conflicting judgments suggested impropriety.
On Justice Ndungu, a letter seen by the Nation from Mr Mboya to the commission said that he lodged the matter against her and Justice J.B Ojwang’ on October 21, 2015.
And, for three years, the commission did not act on the matter until February 27, 2019, when the JSC Secretary, Anne Amadi, wrote to Mr Mboya and asked him to appear before the panel on March 14.
Mr Mboya declined the invitation and “urged the JSC to strive to operate within the provisions and spirit of the law”.
“It is my view that the JSC has fallen foul of the provisions of the law and I do not wish to countenance the infringement on his lordship’s and Ladyship’s right to administrative action which in expeditious, efficient, lawful, reasonable and procedurally fair,” he responded.
The commission then invited Justice Ndungu but she too declined, stating that the complainant had withdrawn the case. The CJ yesterday said the matter was ‘considered withdrawn’.
Justice Maraga said petitions against five judges were heard and dismissed for lack of merit, while one petition against High Court Judge Farah Amin is ongoing.
He added that a petition against Justice Richard Mwongo had been concluded and is pending determination. He has filed his response in a complaint filed against him by Mr Yussuf Dimbil.
Four Supreme Court judges — Justices Mohammed Ibrahim, Smokin Wanjala, Ojwang and Ndungu — have also filed their responses against two petitions filed against them, arising from the recent judgment in the Wajir gubernatorial election petition.
There are also complaints against five magistrates accused of bribery, disappearance of files, irregular release of files, forging of documents, temperament and signing of release orders without surety, among other forms of corruption.
Justice Maraga said the magistrates have been given 14 days to respond.