Supreme Court judge Njoki Ndung’u has denied claims of impropriety in writing minutes of a meeting of top judges that discussed retirement of judicial officers.
In an affidavit, former Chief Justice Willy Mutunga has termed the minutes of October 6, 2015 suspect, saying they are not a true reflection of what was discussed and that they were signed by his deputy Kalpana Rawal, who was involved in the retirement saga.
The dispute arose from the contentious issue of retirement of judges at the age of 70, which affected Ms Rawal and her colleague Justice Phillip Tunoi.
Dr Mutunga also questioned why the judge took the minutes while the Registrar of the Supreme Court is the one mandated to do that.
But Justice Njoki, testifying at the High Court, said during the judges-only meeting, she was mandated as the youngest judge to write the minutes, which she shared for review with her colleagues at a second meeting and which were adopted at a third meeting.
She said the registrar was required to walk out as the issues which were to be discussed required confidentiality.
It emerged that judges met on October 6, 2015 and held a subsequent meeting on October 14, 2015. A third meeting was held on October 27, 2015 after which Justice Rawal signed the minutes.
Njoki told Justice Weldon Korir that the minutes were not confirmed on October 14, 2015 as there were issues raised by Mutunga. She said Mutunga raised concern about the phrasing of some of the minute items, which she subsequently corrected and were confirmed on October 27, 2015.
After Rawal signed the minutes, Njoki said, Mutunga refused to sign minutes of any other meeting held by judges from the apex court.
Asked why Mutunga never signed the minutes, Njoki said the chair of the meeting, who was Rawal, was the one to sign.
At the heart of the meeting was whether Justice Tunoi would sit and sign a judgement in a case filed by Kanu Secretary General Nick Salat as the Judicial Service Commission had directed him not to sit since he was about to retire.
Mr Salat’s lawyer had written to the top court asking whether it would be legal for him to participate based on JSC’s letter paving way for his retirement.
In the meeting, judges were split on whether the Tunoi issue would be addressed in the Nick Salat ruling. Njoki said that Mutunga, Ibrahim Mohammed and Smokin Wanjala were of the opinion that the Tunoi issue should not be addressed in the ruling while their colleagues were of a contrary opinion.
“The bench of five, which was hearing the matter, decided that we would address the issue at the body of the judgement. Justice Mutunga was of a different opinion that the issue could not be addressed in the ruling. He was supported by Justice Ibrahim and Wanjala. However, both Justices Ibrahim and Wanjala were not on the bench and therefore their views could not be taken into account,” said Njoki.
Justice Mutunga subsequently issued a dissent in court.
The court heard that a month earlier, on September 22, 2015, the Supreme Court judges had met and unanimously agreed that they would write to the JSC, which he chaired, to address the potential quorum deficit.
At the meeting, Njoki said, Mutunga and Dr Wanjala, then a Supreme Court representative, advised that the best way to settle the issue was to seek dialogue.
Njoki said it was agreed at the meeting that the CJ, his deputy, Wanjala and Tunoi would not sign as a conflict of interest had arisen. Mutunga was the chair of JSC and Wanjala a member. The judge said it would have been viewed that Rawal and Tunoi were influencing the writing of the letter if they signed it.
The contents of the four-page letter are at the heart of the claim that the lady judge, alongside Ibrahim and Jackton Ojwang boycotted work.