Chief Justice Willy Mutunga has resolved to interdict Supreme Court Registrar Lucy Njora for disobeying his orders on Friday to pass him the file on Justice Kalpana Rawal.
The Show Cause letter is due to be delivered to her this Tuesday morning.
According to sources, Mutunga directed Njora on Friday to forward the Rawal case file to him but she disobeyed.
Interdiction means the Registrar will now stop working and will only receive half salary until her case is investigated and decided.
The Judicial Service Commission plans to meet on Thursday to consider the conduct of Supreme Court judge Njoki Ndung'u over allegations of misconduct after she allegedly hijacked the file in the Justice Kalpana Rawal case despite Ibrahim being the duty judge.
Judge Ndung'u on Friday minutes that suspended the retirement of Deputy Chief Justice Rawal after the Appeal Court ruled that all judges must retire at 70.
Rawal reached 70 years in January 2016 but wants to continue serving until 74, as per the former constitution.
Yesterday the CJ directed that the Rawal appeal to the Supreme Court should be heard on June 2 instead of June 24, as ordered by judge Ndungu.
The CJ constituted a five judge bench of judges Mutunga, Ibrahim, Ojwang, Wanjala and Ndungu to hear the matter.
Mutunga yesterday asked the second Supreme Court Registrar Esther Nyaiyaki to notify the parties to appear before Justices Ndung'u and Smokin Wanjala for directions on Tuesday.
On Monday, Rawal filed an objection to the CJ's directives saying he had varied orders given by judge Ndung'u without a legal mandate. It will be raised before the court this morning when parties appear for direction.
On Thursday, the five judge bench should hear an application by the JSC seeking to reverse Ndungu's decision to suspend Rawal's retirement, as well as hearing Justice Rawal’s appeal.
Through lawyer Issa Mansour the JSC says that Ndungu presided over the case despite not being the duty judge and therefore her ruling should be struck from records.
According to the JSC, there was no notice of appeal before Ndungu, no certificate of urgency and no contested judgement.
However, the Supreme Court may not even take off on Thursday as its composition may be challenged in the ongoing power struggle over the CJ succession.
It is possible that some parties may ask for Mutunga and Smoking Wanjala to be excused as they sit in the JSC that decided on the 70 year retirement age and will therefore not be independent.
Similarly, Ndungu might be disqualified from sitting in judgement on a decision she herself had already taken.
That might leave only two Supreme Court judges available which does not provide a quorum.
In that case, the status quo could persist with Justice Rawal remaining as Deputy CJ and even possibly as acting CJ if the impasse persists past Mutunga's retirement on June 16.
That would make Rawal a key decision maker in filling the upcoming vacant positions on the Supreme Court.
Petitioner wants tribunal set to remove of CJ Mutunga
However as further confirmation of the murky waters around the Mutunga succession battle, a previously unknown person called Isaac Madubwi yesterday wrote to the Secretary of the Judicial Service Commission seeking Mutunga's removal for unconstitutionally issuing the Show Cause letter.
As of yesterday the letter had not been delivered so how did Madubwi know about it?
Madubwi's letter dated May 30 says that the CJ sent his driver and bodyguards to retrieve the Rawal file from Supreme Court judge Njoki Ndung'u while she was hearing the matter on Friday.
The letter claims that Ndung'u was the duty judge at the Supreme Court on Friday but the JSC insists it was Justice Mohammed Ibrahim.
"This amounts to interference with the independence of another judge and is abuse of the powers of the office of Chief Justice," Madubwi wrote.
Madubwi's letter concludes by requesting a tribunal to remove Mutunga from office but it is unclear how he had inside information. A Google search of his name produces no results.
To make matters even more confused, a man has moved to the High Court seeking to stop Mutunga from retiring in June.
Bryson Mangala claims that Mutunga’s early retirement in June is part of a grand scheme involving the National Intelligence Service to rig the 2017 elections.
He claimed that the NIS and JSC plan to plant three new judges in the Supreme Court who could be used in 2017 to confirm an illegitimately elected president should a dispute reach the Supreme Court.
Yesterday former Law Society of Kenya CEO Apollo Mboya filed a fresh petition to have Judge Ndung'u sacked.
Mboya petitioned the JSC to have Ndung'u removed as a Supreme Court judge following her Friday controversial order. Mboya says Ndung'u engaged in misconduct by issuing the ruling yet there was a clear conflict of interest as she and two other Supreme Court judges had already pronounced on the retirement age of judges.
Mboya had already taken judges Ndung'u, Ibrahim and Jacktone Ojwang to the JSC asking that they be removed for misconduct. The JSC formed a sub-committee and eventually decided there was misconduct but not sufficient for their removal. The commission opted to admonish the three.
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