Action against JSC throws top court into deeper confusion

Supreme Court judges Njoki Ndungu, Jackton Ojwang, Willy Mutunga, Phillip Tunoi (under suspension), Mohamed Ibrahim and Smokin Wanjala.

Uncertainty at the country’s top-most court has assumed new heights after a top lawyer made good threats to pursue the removal of five of the seven judges.

A Supreme Court judge is also headed to court next week to quash an adverse finding against her by her employer, the Judicial Service Commission (JSC).

In what further complicates the situation obtaining at the court, former Law Society of Kenya CEO Apollo Mboya has made the first move and filed a suit at the High Court to compel the JSC to complete the process of removing the five judges.

The entire JSC left the country on Friday for the the US on an eight-day working trip. Chief Justice Willy Mutunga was slated to follow them to the US over the weekend.

In Petition No 204 filed at the Constitutional and Human Rights division of the High Court on Friday, Mr Mboya wants the JSC compelled to recommend to President Uhuru Kenyatta the removal of Deputy Chief Justice Kalpana Rawal and Judges Philip Tunoi, Mohamed Ibrahim, Jackton Ojwang and Njoki Ndung’u.

Already, the JSC has made a finding of misconduct on their part arising from Mboya’s original petition and admonished them.

Mboya, however, argues the only recourse where a finding of misconduct has been made against such high judicial officers is formation of a tribunal with view to removing them from office.

“The petitioner prays for declaration that upon the determination by JSC against the judges, the JSC is under a mandatory constitutional duty to forward the petition to the president as required by Article 168(4) of the constitution setting out the alleged facts constituting the grounds for the judges removal and the refusal to do so is unconstitutional,” Mboya’s petition reads.

He also wants a declaration made that JSC is not mandated by the law to administer any other form of discipline where a finding of misconduct is made other than the tribunal route. The purported discipline through admonishment is unconstitutional and therefore null and void, Mboya argues.

The Standard on Sunday has learned that Justice Ndung’u is also following Mboya at the High Court for a judicial review of the JSC decision against her.

Her lawyer Andrew Musangi confirmed that the JSC had failed to furnish her with particulars of the misconduct, material evidence relied upon in the finding and the legal basis for the procedure employed in determining the petition.

Judicial review

“Given the failure by the JSC to respond to our urgent letter of last week, we have advised our client to file for judicial review on the matter. We are of the view that it is only through this action that our legal questions can be addressed and our client vindicated,” lawyer Andrew Musangi said.

In his suit, Mboya also claims the JSC delayed in making a determination on his original petition by six months. and when they made the decision, he says, they issued a “part determination” and reserved other limbs of the decision to unknown future date. He wants the High Court to affirm the delay and to make a finding that the JSC violated the law in admonishing the judges, delaying the petition and refusing to forward the petition to the president. Mboya’s original petition against the five judges was filed before the JSC on October 9, 2015. The ground was that the five had withdrawn their services to the people of Kenya and imposed a moratorium on all judicial operations with immediate effect.

Ten days later on October 19, Mboya lodged additional grounds against judges Tunoi, Rawal, Ndung’u and Ojwang’ for pronouncing themselves on a matter in which some of them had a direct interest in- the issue of retirement age for judges.

Six months later on May 9, JSC wrote to Mboya confirming that they had dispensed with the grounds of the original petition by affirming the misconduct and admonishing the judges. The JSC however said it was still considering the additional grounds against the four judges.

The following day, on May 10, Justice Ndung’u’s lawyer wrote to the JSC seeking the particulars of the alleged misconduct and the basis for the findings.

On May 13, Mboya wrote to the JSC complaining about the alleged admonishment in place of recommendation for removal of the judges, demanding the JSC report on his petition as well as the instruments admonishing the judges.

Mboya threatened that he would petition the National Assembly against the JSC action as well or move to court to compel the JSC to forward their report to the President recommending a tribunal.

Of the Supreme Court judges, only the Chief Justice and Judge Smokin Wanjala are left out of Mboya’s action. Mutunga is, however, retiring in a matter of days.

On top of Mboya’s action, Justice Tunoi is currently facing a tribunal on allegations of bribery. Tunoi and Rawal are also fighting in the courts to delay their retirement.

In his suit, Mboya has named the JSC as the first respondent and the Attorney General as the second respondent. The five judges are listed as interested parties in the suit set to be heard by their juniors at the High Court.

The suit also further muddies judicial waters and presents the dilemma of sorts should appeals arising from the suit stretch to the Supreme Court. The only judge who can hear the matter- Smokin Wanjala, sits in the same JSC which is subject matter of the suit.