Supreme Court judge allowed to use confidential evidence against commission

Supreme Court judge Njoki Ndung'u has been allowed to use additional evidence in her bid to stop the Judicial Service Commission (JSC) from taking disciplinary action against her.

Justice Joseph Onguto dismissed an application by JSC to stop the judge from using the evidence, ruling that nothing bars a party challenging any decision from putting in all the evidence that supports their case.

"I decline the application to expunge the evidence as requested by the commission. The conclusion is that their objection must fail and it does, since the evidence is not irrelevant as they claim. I hold that it is relevant to the suit and will not disallow it," ruled Onguto.

In the dispute, Ndung'u is contesting a decision by JSC that found her and her colleagues Jackton Ojwang and Mohammed Ibrahim guilty of misconduct.

According to the commission's findings, the three engaged in a go-slow, occasioning a delay at the Supreme Court.

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Ndungu argued that JSC had no mandate to admonish them and that the commission could only recommend that a tribunal be formed to investigate their conduct if they were guilty of misconduct.

She filed minutes of a meeting the Supreme Court judges held in November last year to prove they were not on a go-slow.

It is these minutes that JSC wanted disallowed as part of the evidence, claiming that they were only meant to delay the hearing and determination of the case.

According to the commission, admitting the impugned minutes would affect judicial independence as they touched on the judicial decision-making process. It added that the minutes were irregularly obtained given that they were confidential.

Mr Onguto however ruled that the fact that the minutes were confidential would not bar the judge from adducing them, given that the petition was about protecting her rights to fair administrative action.