Njoki Ndung’u
  • In a petition to Judicial Service Commission Apollo says the judge has misconducted herself through her judgement
  • The lawyer also says the Lady Judge exhibited total lack of courtesy and civility towards her fellow judges in the Bench

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The 440-page dissenting judgment of Supreme Court judge Njoki Ndung’u has provided fodder for her ouster from the apex court.

Lawyer Apollo Mboya has sent a petition to Judicial Service Commission (JSC) claiming that the judge breached her oath of office and misconducted herself through the judgment.

Mboya has successfully prosecuted a JSC petition against the Lady Judge in the past. In the successful petition, the JSC found that Justice Ndung’u and her colleague Justice Jackton Ojwang’ misconducted themselves by participating in an illegal strike.

Merit of case

The Commission reprimanded her, and Mboya moved to court to challenge the commission to recommend a tribunal to probe her. Additional limbs of the misconduct petition are still pending at the JSC while Mboya’s case is ongoing in court.

In the fresh petition, Mboya bases his gross misconduct charge on the judge’s claims in the dissenting opinion on presidential petition ruling that she examined all the disputed forms deposited with the court’s registry in the petition.

“If the assertion is true, then Justice Njoki Ndung’u ought and must have examined each of the disputed forms on 28th and 29th August 2017 before she delivered her dissenting judgment on 1st September 2017 which she amplified in her detailed dissent judgment on 20th September 2017,” he says.

He says the judge did not allude to this examination in the summary decision which triggered her dissent. Mboya seems to say that Justice Ndung’u made up her mind then proceeded to look for evidence to justify it.

Besides, Mboya says in the petition that the judge “dishonesty ignored” the forms tendered by the Independent Electoral and Boundaries Commission (IEBC) for scrutiny and based her dissent on other forms which were not tendered for scrutiny.

“It was not humanly possible that Justice Njoki Ndung’u examined all the disputed forms from the date of hearing of 28th August to the date of summary judgment of 1st September 2017,” the affidavit reads.

In further justification to the alleged misconduct, Mboya says that Justice Ndung’u exhibited total lack of courtesy and civility towards her fellow judges in the Bench. He cited several instances where he alleges the judge showed “bad judicial temperament” against her colleagues.

Such instances include when she called out colleagues for “acquiescing” to petitioner’s demands, of “failing critical tests” and of “disregard to clear-set principles of electoral dispute resolution.”

The petitioner also claims that the judge incited lower courts to disregard the majority decision of the Supreme Court in the matter.

“The actions of Hon Njoki Susanna Ndung’u have further compounded the misconduct as already determined by the JSC as communicated by the JSC letter dated 9th May 2016 to the petitioner hereto,” the petition reads.

The Commission will now have to process Mboya’s petition by considering its merit.

If satisfied with its merit, the commission will have to write to President Uhuru Kenyatta recommending formation of a tribunal to probe her with view to removing her from office.