Two Kenyan Supreme Court judges face fresh petition

Supreme Court judges Jackton Ojwang and Njoki Ndung'u during the hearing of Deputy Chief Justice Kalpana Rawal and judge Philip Tunoi's retirement case at the Supreme Court on June 14 [PHOTO: DAVID GICHURU/STANDARD]

NAIROBI: Pressure is mounting on two Supreme Court judges who did not show up for the Supreme Court ruling that retired judges Kalpana Rawal and Philip Tunoi.

Justices Njoki Ndung'u and Prof Jackton Ojwang' are now facing a fresh petition for absenting themselves from court on Thursday.

A petition by former Law Society of Kenya (LSK) Chief Executive Officer Apollo Mboya to the Judicial Service Commission (JSC), the judges' employer, says their action further "compounded the misconduct findings", which had earlier been established against them.

"On the designated date of Thursday June 16, 2016 for the delivery of the ruling, Hon Justice Njoki Ndung'u and Hon Justice (Prof) Jackton Ojwang' in complete disregard to their constitutional duty and oath of office absented themselves from the Supreme Court and precipitated lack of quorum to the bench," the petition reads.

On that day, the Supreme Court delivered a ruling on whether to grant a stay of the Court of Appeal decision retiring Tunoi and Rawal. This followed Tuesday's majority bench decision to disqualify the Supreme Court from hearing the matter.

In the Tuesday decision, Ndung'u and Ojwang were willing to proceed with full hearing of the second appeal of the retired judges, despite the objections raised on their impartiality.

In his petition, Mboya claims that on that day (Tuesday), Ndung'u and Ojwang "exhibited total lack of courtesy towards the counsels and the interested party and bad judicial temperament in their general attitude towards the law, litigants, counsels and other judges as contained in their rulings and pronouncements in the courts of the proceedings."

He also says the pair exhibited the same lack of courtesy during the hearings of the matters on June 2. Mboya has deployed a total of nine counts against the two judges.

They are; lack of judicial temperament, lack of professional competence, engaging in illegal strike, disregard of the principles of due discharge, lack of impartiality, failure to exhibit the values of integrity, propriety, equality and diligence in their conduct.

"The petitioner prays that the JSC be pleased to determine the actions of the judges as compounding the misconduct findings against them and to initiate the necessary procedures for their removal for breach of oath of office and for gross misconduct and/or behaviour incompatible with the status of a judge of a Supreme Court of Kenya," the petition served on JSC on Friday says.

However, Justice Ndung'u's camp does not think highly of Mboya's petition. Sources close to the judge say the petition is founded on misreading or misunderstanding of the Supreme Court Act, which allows judges to miss out on delivery of judgments.

"Section 26 (2) of the Act is clear that where a matter is heard before the Supreme Court and judgment reserved for delivery on another day, it shall not be necessary for all the judges before whom the matter was heard to be present in court on the day appointed for the delivery of the judgment," the sources said.

Section 26 (3) of the Act however says that a judge "who has heard a case and who is absent from the delivery of judgment may sign a copy of the judgment with which the judge concurs or, where the judge has written an opinion, give the opinion to a judge present at the delivery of judgment to announce or read the concurrence or opinion in open court."

It was not immediately clear yesterday whether Justices Ndung'u and Ojwang had written their judgment on the stay order and whether they had given the opinion to any of the three judges who turned up for delivery of judgment on Thursday.

What is clear, however, is that the sitting adjourned for lack of quorum and inability to proceed. With Article 163 (2) prescribing the quorum at five judges, it is impossible the application for stay will be considered any time soon.

With Willy Mutunga's retirement and the two judges (Tunoi and Rawal) out, only four judges remain active - Ndung'u, Ojwang, Smokin Wanjala and Ibrahim Mohamed. Tunoi and Rawal's positions have since been officially declared vacant and advertisements sent out for interested candidates to apply.

"They can never be five until three judges are appointed. Then, the case can continue... but then again, they will have been replaced at the time," lawyer Charles Kanjama yesterday told the Standard on Sunday.

The JSC has already made a finding of misconduct against three of the remaining judges of the court - Ibrahim, Ndung'u and Ojwang' - in relation to an illegal strike they allegedly participated in last year.

While Mboya is pushing the JSC to escalate the finding of misconduct into a process to remove the three, Ndung'u is challenging the finding at the High Court. Their respective applications at the High Court are still pending.

However, Ndung'u's application to stop the JSC from determining part of Mboya's original petition left out while affirming the misconduct was rejected by the High Court two weeks ago. In the current part before the JSC, Mboya says the judge, together with others, un-procedurally pronounced herself on the retirement in a separate case.