Supreme Court Judge Njoki Ndung'u has raised the stakes on judges graft allegations by inviting Directorate of Criminal Investigations (DCI) to probe her.
In what now gives a new twist to the judicial probe involving the Supreme Court, the lady judge who wrote to sleuths through her lawyer Andrew Musangi wants parallel investigations alongside those of Judicial Service Commission (JSC).
While subjecting herself to DCI’s authority, she committed in the letter dated March 21, that in the event she is found culpable, she should be charged.
“Such matters call for immediate, thorough and impartial investigations by a department equipped to delve into the matter and unearth the factual basis of these claims and even more importantly initiate prosecution of anyone found culpable,” says Mr Musangi in the letter received by DCI on March 22 and seen by Sunday Standard.
The judge also wants the DCI to probe all players mentioned in the petition filed before JSC and touching on Wajir gubernatorial election case.
Probe leakage of judgement
She wants anyone, including the complainant Jared Ngeri and lawyers who helped file the petition probed and charged if found to have any criminal conduct.
“Our client takes the allegations against her extremely serious. Apart from judicial misconduct, these allegations suggest criminal culpability on the Supreme Court judge,” the letter copied to Ethics and Anti Corruption Commission and Director of Public Prosecution Noordin Haji reads in part.
Justice Njoki’s position contradicts that of Deputy Chief Justice Philomena Mwilu who challenged criminal trial initiated by the George Kinoti-led agency’s probe.
Justice Mwilu’s position is that DPP has no role to press charges against a sitting judge.
Nevertheless, Justice Njoki in her letter says that DCI is free to obtain call records from telcos and also probe leakage of Supreme Court judgement to parties.
“Our client is prepared to immediately record a full statement once requested by your office to do so and cooperate fully with your investigations not only as a Supreme Court judge but as a Kenyan who wants to support fight against corruption,” she states in the letter.
At the same time, Supreme Court judge Jackton Ojwang now says his employer, JSC, has not served him with their verdict sending him to a tribunal.
In a letter written by the judge’s lawyer Nani Mungai to JSC secretary Ann Amadi and seen by Sunday Standard, Justice Ojwang complains that he heard from the media that the commission had agreed that he ought to defend himself before a tribunal.
In the letter dated March 21, Prof Ojwang makes five demands which he wants met by his employer.
The senior judge faulted his employer for passing a verdict through ‘an omnibus’ press statement, instead of informing him in writing.
Ojwang was supposed to appear before a JSC committee compromising Court of Appeal judge Mohammed Ibrahim, JSC vice chair Mercy Ndeche, High Court judge Aggrey Muchelule and former minister Felix Koskei.
He however wrote to them a six-page letter explaining why he would not appear in person. Instead, he instructed lawyer Mungai to appear on his behalf.
He wrote to JSC on March 15 citing discontent about the summons. In his letter, the judge explained that he recused himself from hearing a case on Awendo sugar belt.
“I am coping his letter to my advocates so that they may take charge of this matter.
"From the whole context of this matter, and from full context of the ill intent against me such as is quite evident, I will not myself be appearing before the well-known committee members of the Judicial Service Commission,” Justice Ojwang’s letter read in part.
In his March 21 letter, Justice Ojwang demanded that JSC should release if there is any, report by the four-member committee which heard the complaint by his accuser Nelson Oduor Onyango.
He articulated four demands which he wants met by JSC in a two-page letter.
JSC announced the decision to refer the judge's case to a tribunal, citing his failure to appear to defend himself against the claims linked to the hearing of a case on the Awendo sugar belt.
He is accused of benefiting from rehabilitation, by Migori Governor Okoth Obado, of a road that reportedly led to his house.
"The commission received a report from a committee of the JSC that had been set up to consider the petition filed by Nelson Oduor Onyango, and eight others, against Justice Ojwang.
"Regrettably, the judge, despite notice being served upon him, failed to appear. The petition had disclosed sufficient ground to warrant recommendation to President to set up a tribunal," said Chief Justice David Maraga.
Battle his accuser
He also demands that the Maraga-led commission should give him a transcript of the full JSC meeting and also written reasons as to why it recommended that President Uhuru Kenyatta form a tribunal to investigate his conduct as a Supreme Court judge.
Justice Ojwang laid his strategy to battle JSC’s decision which now puts his 23-year career at risk just as he nears retirement.
He said that he was mulling over taking JSC head on before the High Court or battle his accuser before the tribunal intended to be set up by President Uhuru within 14 days.
“Our expectation is that statutory tribunal exercising quasi-judicial jurisdiction is expected to give reasons or rulings to parties in writing and not to issue them through an omnibus press statement.
"The above information is crucial to enable us advice our client and enable him challenge the decision or prepare for the tribunal,” the letter read.
He also wants to know whether the JSC committee put a note of the complaint which had been filed by former Law Society of Kenya (LSK) Apollo Mboya which he later withdrew.
In this complaint, the judge declined again to appear before the same committee, accusing them of being the complainant, prosecutor and the judge.
“We are not clear whether the complaint by Mr Apollo Mboya that was heard on March 20, 2019 was covered by the omnibus statement.
"Kindly confirm if that complaint was concluded and if it was, let us have written reasons for the determination either way,” he wrote.
At the heart of the battle between Ojwang and his accusers will be whether JSC would proceed to make an adverse decision while the evidence presented by a surveyor it sent to investigate the judge gave a different narrative.
JSC said it has a reason to believe that Migori Governor Okoth Obado built a road for the judge, but a surveyor it sent to the judge's home to find out whether the allegation was true gave a differing opinion.
The surveyor, Peter Wanjala, visited Suna East on March 5, and his report filed before the commission reads that the road in question was not private (property) as had been alleged.
At the same time, a second petition which had been filed before JSC and seeking a tribunal to try the judge, and his colleagues – Justices Mohamed Ibrahim, Njoki Ndung’u and Smokin Wanjala has been withdrawn.
The petitioner in the complaint, Mohamed Mohamud Sheikh wrote to JSC yesterday asking it to drop his claims but did not explain why he changed his decision.
“Petitioner wishes to wholly, voluntarily and without conditions withdraw it for all purposes. Disregard the averments therein,” Mohamud urged JSC in his letter.
The commission had given the four senior judges 14 days to reply to Mohamud’s petition. Although it is withdrawn, all eyes will be on the commission as it ordered Justices Ojwang and Njoki to reply to Mr Mboya’s case despite him withdrawing the same and expressly stating that he would not appear before them.