Justice Njoki Ndung’u files a case at the High Court to stop the JSC from discussing
her sacking over alleged misconduct. Judge Joseph Onguto rules next Monday
The Supreme Court has been asked to disqualify itself from handling the case of judges’ retirement age for lack of impartiality.
If this application by activist Okiya Omtatah is allowed, the Court of Appeal’s decision sending Deputy Chief Justice Kalpana Rawal home at 70 will stand.
At the same time, High Court judge Joseph Onguto will rule next Monday whether he will stop the Judicial Service Commission from convening to hear a petition seeking Ndung’u’s removal from office over alleged misconduct.
The judge said her fundamental rights are likely to be trampled upon by the commission if the court does not protect her.
Ndung’u said she is apprehensive the JSC will determine an application by former LSK CEO Apollo Mboya without hearing her side of the story. Mboya wants Ndung’u removed over alleged misconduct.
At the Supreme Court, Omtatah told Justices Smokin Wanjala and Ndung’u that he has filed an application saying the entire Supreme Court lacks jurisdiction to hear Rawal’s appeal. This is because, in one way or another, all the members of the court have pronounced themselves on the matter, hence, they will not be independent.
He says under Article 50 ( 1 ) of the constitution, the jurisdiction of a court can only be exercised where the court is impartial and one which is not impartial is stripped of the powers.
His application arose out of an appeal by Rawal seeking to overturn the ruling sending her home at 70.
Last Friday, Ndung’u single-handedly heard the appeal and granted a temporary order against the ruling, leading to a storm in the judiciary.
Following Ndungu’s order, four new cases have been filed, some seeking the judge’s removal from the judiciary over alleged misconduct and others seeking to compel the JSC to stop Chief Justice Willy Mutunga’s early retirement to avert a crisis. The JSC has challenged Ndung’u’s order, saying she ‘hijacked’ the file, despite the fact that she was not the duty judge. The duty judge on Friday was Justice Mohammed Ibrahim.
The JSC says it was denied a hearing despite its counsel being at the Supreme Court registry long before Rawal filed her appeal. The commission is of the view that Rawal was irregularly granted a temporary order halting the decision to send her home.
“The application did not have a certificate of urgency as required under the Supreme Court rules and there was no basis upon which the duty judge could certify it as urgent and grant orders ex parte without a specific order requesting the same in the application,” the JSC says.