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Supreme Court judges, lawyer, JSC seek to end dispute out of court

By Kamau Muthoni | November 14th 2018
Supreme Court Judge Mohamed Ibrahim during the hearing of retirement age for judges at the Supreme Court. [George Njunge/Standard]

A dispute that involves a lawyer, several Supreme Court justices and the Judicial Service Commission (JSC) may be settled out of court.

High Court judge Chacha Mwita was Tuesday told the parties had informally met and were considering having the case touching on justices Mohamed Ibrahim, Njoki Ndung’u and Jackton Ojwang’ marked as settled.

Former Law Society of Kenya CEO Apollo Mboya had sought to force the JSC to forward the names of the three senior judges to President Uhuru Kenyatta to constitute a tribunal for their removal.

Former Chief Justice Willy Mutunga was also entangled in the matter.

At the centre of the dispute was the retirement age of former Deputy Chief Justice Kalpana Rawal and Justice Phillip Tunoi.

Mr Mboya wanted the three justices removed from office for allegedly downing their tools in protest after the JSC retired justices Rawal and Tunoi on attainment of 70 years of age.

“I am aware there is some move towards an amicable settlement. There has been some discussion although not formalised. There is a likelihood that this matter can be settled. We can take a mention date probably in December in the goodwill of the Christmas season to have the matter settled,” Justice Ojwang’s lawyer Daniel Musyoka told the court.

The JSC’s lawyer Charles Kanjama told court he would not cross-examine Justice Njoki.

“Mr Kanjama is not able to proceed today. On September 4 this year, he argued an appeal before the Supreme Court and he believes that since the judgment is still pending he will not be able to-cross examine Justice Njoki to avoid conflict of interest,” the judge heard.

Dismiss case

At the same time, Attorney General Kihara Kariuki urged the court to dismiss the case by Mboya, saying it had no cogent grounds for the removal of the three judges.

“The JSC in the instant case was very clear that the removal of Mohamed Ibrahim, Jackton Ojwang’ and Njoki Ndung’u did not meet the required threshold and they were therefore not satisfied that it discloses a ground for removal of the said judges because it did not constitute gross misconduct,” the reply filed in court by the AG read.

The AG further argued that the court had no powers to determine whether a judge ought to be removed from his or her seat.

“The instant petition is misconceived and the allegations made by the petitioner are baseless and unsupported by the Constitution and legal foundations. It cannot be that small claims to which all are susceptible, which have no bearing whatsoever on the performance of the duties of a judge, should form the basis for removal of a judge.”

Justice Njoki, in her reply, argued that Mboya’s petition was vague. While faulting her employer’s decision, she also argued that she was not given a chance to rebut the allegations by the lawyer before the JSC made a decision.

“The JSC conducted itself in such a manner as to deny the petitioner the right to know the case against her by its continued refusal to provide her with proper particulars of Mr Mboya’s petition despite written correspondences requesting the same,” Justice Njoki said.

No quorum

In his reply, Justice Ojwang’ denied that they had gone on strike. He said between September 28, 2015 and last October 2, the Supreme Court had no quorum.

He also argued that the JSC used a piece of law that had not been enacted to admonish himself and justices Ibrahim and Njoki.

Justice Ibrahim, on the other hand, argued that the JSC had overstepped its mandate because admonishing a judge was neither in the Constitution nor the Judicial Service Act. The case will be mentioned on February 12, next year.

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