Two urgent meetings called over ruling on judges' retirement age

Supreme Court Judge Justice Njoki Ndung'u. [Photo: File/standard]

Supreme Court Judge Njoki Ndungu’s swift and dramatic ruling last Friday will be the subject of an impromptu meeting by the Judicial Service Commission (JSC) today.

The Supreme Court is also expected to meet tomorrow to discuss the ruling that has put the highest court in the land in the limelight.

Sources say the two agencies want to understand why Justice Ndung’u issued prohibitory injunctions on a Court of Appeal decision sending Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi on retirement.

The two meetings, according to insiders, will examine the decision by the Court of Appeal to send Justices Rawal and Tunoi on retirement as well as the stay order issued by Ms Ndung’u. The new development has a bearing on who will be the acting Chief Justice (CJ) after Willy Mutunga leaves office on June 16.

The move came after it emerged that Dr Mutunga had tried to have the file placed on his desk for direction and action. There was even an exchange of communication between the CJ and Ms Ndung’u, a source revealed.

According to sources, the CJ had asked for the file to be taken to him to deal with the applications as a single judge. He also wrote to Ndung’u on the same. But the sources said, Ndung’u told the CJ she saw his communication after she had dispensed off with the matter.

“Justice Njoki asked the CJ on why he did not think of calling her directly and reminded him he had informed them on May 22 that he would be out of the country. She did not know he was around,” said our source.

The source added that Ndung’u had consulted Justice Jackton Ojwang before she went to listen to the applications by her fellow judges, and that she didn’t think she had done anything wrong.

This means if the Supreme Court meets over the Rawal and Tunoi appeal, it would exclude Njoki and Ojwang because they consulted over the same. It is more complicated because JSC is an interested party. The Chief Justice and Justice Smokin Wanjala are members of JSC while Tunoi and Rawal are the litigants in the matter.

Very Complicated

“It is very complicated because everyone is an interested party,” said the source.

The developments have brought up serious questions of conflict of interest since the retirement of the Chief Justice next month will see Justice Rawal act as president of the Supreme Court, yet the same court will be handling a matter in which she is directly involved.

The source said that the CJ said he had told the Supreme Court Registrar to place the files on the appeal in his office for action.

“But by the time the registrar was looking for the files, Justice Njoki was hearing the applications in her chambers. This made it difficult for the registrar to act.”

The drama at the Supreme Court is seen as being part of efforts by a section of leadership to influence the incoming court after the exit of Dr Mutunga.

Already former Law Society of Kenya Secretary Apollo Mboya has indicated that he will lodge a petition today seeking to have JSC start the process of removing Lady Justice Njoki as a judge.

Mr Mboya said Ndung’u committed gross misconduct when she allegedly purported to constitute a single Supreme Court Bench to hear the matter ex-parte and grant orders.

Ndung’u was the duty judge and there are claims that she had consulted Justice Ojwang before proceeding with the matter and issuing the orders.

Mrs Rawal, who turned 70 in January and Mr Tunoi, had moved to the Court of Appeal to challenge a decision by the High Court that ruled the retirement age for judges is 70.

At the same time, Tunoi, 72, is facing a tribunal over claims that he received Sh200 million to influence an election petition in favour of Nairobi Governor Evans Kidero.