Supreme Court judge Justice Njoki Ndung’u survived a petition seeking her ouster, a development that in turn saved the top court from stalling for lack of quorum.
The case filed by lawyer Apollo Mboya against the judge was a high-stake one because had it been successful in toppling her, it would have meant the Supreme Court would have been left with four judges.
According to the Constitution, the Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges. Presently, only five judges can sit on the bench.
The court headed by chief Justice David Maraga has seven judges. At the moment, Deputy Chief Justice Philomena Mwilu cannot sit on the bench because she is fighting a criminal case, and therefore is confined to administrative matters.
Justice Jackton Ojwang', too, is suspended pending a hearing by a tribunal probing misconduct claims against him.
Had the Judicial Service Commission recommended that Justice Njoki faces a tribunal, the court would have remained with four judges – the Chief Justice, Justices Mohamed Ibrahim, Smokin Wanjala and Isaack Lenaola.
Mr Mboya had also lodged a similar complaint against Justice Ojwang', claiming that they had interpreted the law wrongly in the Kenya African National Union (Kanu) Secretary General Nick Salat’s election petition in 2013.
The two were supposed to appear before JSC on their decision on whether JSC’s directions that former judge Phillip Tunoi ought not to have sat in court to hear Salat’s case after clocking 70 years.
Justice Maraga said JSC had marked Justice Njoki’s case as withdrawn, adding that it was the least discussed case by the full commission during Wednesday’s deliberations that went into the night.
“I want to say that what I saw in the media today is surprising. It is as if we were deliberating Justice Njoki’s case only. It was the least deliberated case,” the Chief Justice said.
Meanwhile the commission recommended that President Uhuru Kenyatta forms tribunals against three judges - Justices David Marete, Lucy Waithaka and Martin Muya - for misconduct.
This is the first time three High Court judges will be facing different tribunals over misconduct after their employer cracked the whip to weed out graft and misconduct in the Judiciary.
Marete, an Employment and Labour Relations Court judge, is said to have overturned an order given by another judge of the same court.
This was in a labour dispute between Kenya Tea Growers Association against tea firms Unilever, Siret and five other companies, which had been filed before Kericho labour court.
“After hearing the matter, the commission found the petition had disclosed gross misconduct, bias, impartiality and breach of the Constitution and judicial code of conduct against the judge,” said Justice Maraga.
Meanwhile, Justice Muya is said to have caused NIC Bank to get into losses after he issued orders that gave room to a trader to sell cars he had used as security for a loan.
Despite several pleas by the lender, the CJ said, the judge adjourned the case for five months, within which Afred Kikorir sold the cars.
At the same time, Justice Waithaka is said to have issued two contradicting judgments in the same case. The judge sat in a lands dispute between Jonathan Mibei and Phillip Lelei, in which she first ruled in Mibei’s favour, then ordered that he should be evicted by Lelei.
“The commission found that the petition had disclosed impropriety by the judge for issuing two conflicting judgements over the same matter,” Justice Maraga said.
At the same time, five magistrates had been served with charges to explain various misconducts, including disappearing files, irregular release of exhibits, forging documents, temper, bribery, signing release orders without surety and other forms of corruption.
The removal petitions against the five judges were, however, dismissed for lack of evidence, while one petition against Justice Richard Mwongo is yet to be determined.
Another case against Justice Farah Amin is partly heard while another against Justice Majanja was withdrawn.
The CJ said 10 cases against judges would be heard between June 10 and 15.
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