• Ndung'u also said she has never declined to attend court.
Supreme Court judge Njoki Ndung’u has denied claims that she was among three judges who went on a slow down in protest against the JSC's decision to retire their two colleagues.
It had been alleged that judges Njoki, Ibrahim Mohammed and Jackton Ojwang went on a strike in 2015 when the Judicial Service Commission decided to send former DCJ Kalpana Rawal and Judge Philip Tunoi on retirement.
While testifying before Justice Weldon Korir, the apex court judge maintained that she never absconded work, adding she was on duty on that week but she was never empaneled on a bench.
Ndung'u also said she has never declined to attend court.
On the issue of the minutes she wrote in October of that year, she said that she was the one who took the minutes because at the time, she was the youngest judge on the bench and that was the tradition.
Njoki also testified that the issue of quorum was their concern in that meeting saying they raised concern over the issue to retire two of their colleagues.
Njoki told the court that as a Supreme Court bench they have been facing issues of quorum for a long time.
According to the judge, the situation of quorum at the apex court is serious which has even led them not to go for leave because of the crisis.
“Supreme Court judges don't go on leave because of the quorum issues and we have even asked the former CJ and the current CJ to look into the issue of quorum” she said.
Njoki also said she was not able to go for maternity leave in 2012 when former DCJ Nancy Barasa was removed because of the issue of quorum.
She maintained that the only issue raised in the said meeting was concern over two of their colleagues being unable to sit, which would in turn led to a quorum crisis.
The judge also testified that it was at that confidential meeting that the former CJ Willie Mutunga, who was the Chair of JSC, advised them to write a letter to the JSC and raise their concerns.
However, the judge said that the commission never addressed their concerns in the letter that was forwarded to them.
While being led in her testimony by lawyer Andrew Musangi, Njoki said that the minutes before court that she wrote do not show that they were intending to down their tools.
She further added that in the month of October despite a quorum hitch, they continued with the matters as usual and is not aware why some matter was taken out.
During cross-examination, Mutunga’s lawyer Charles Kanjama, who is also representing the JSC, pressed the judge on the authenticity of the minutes and why she was the one who wrote instead of the Registrar.
Njoki said that the meeting was a confidential one among the judges and that’s why they asked the registrar to leave the meeting.
She also denied claims by the former CJ that that the minutes she had written had been rejected, arguing that there were only minor changes that were made.
Njoki further said that she was asked by her fellow judges to take the minutes and Mutunga was late for the meeting, adding that the CJ had delegated the chairing of the meeting to DCJ Rawal who chaired the meeting and signed the minutes.
She produced an email that had been sent to them by Mutunga which stated that he would be available from 2pm but Rawal should chair the meeting in his absence.
Kanjama claimed that according to Mutunga, the minutes were suspect, asking how a deputy can chair the meeting while he was present for the same meeting.
Njoki told the court that even though Mutunga was present, he was late and had already delegated the function of chairing the meeting to Rawal.
In the case, two petitions relating to the strike of the judges were filed at the High Court, which later consolidated them.
In one of the petitions, Apollo Mboya wants the JSC to be compelled to recommend formation of a tribunal for Njoki’s removal from office while Njoki filed a petition challenging the decision by JSC to reprimand her, arguing that there is a lacuna in law when it comes to cases of minor misconduct.
Mutunga is expected to take the stand on Tuesday to be cross-examined in relation to the said minutes.