Ex-LSK’s Mboya wants Njoki Ndungu removed from office

May 30, 2016 5:14 pm
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He also argues that Justice Ndungu had no business hearing the application as she is among three Supreme Court judges found guilty of misconduct by the JSC for declaring themselves on the retirement dispute before the matter was before them/COURTESY
He also argues that Justice Ndungu had no business hearing the application as she is among three Supreme Court judges found guilty of misconduct by the JSC for declaring themselves on the retirement dispute before the matter was before them/COURTESY

, NAIROBI, Kenya, May 30 – Former Law Society of Kenya Chief Executive Officer Apollo Mboya wants the Judicial Service Commission to commence the process of removing Supreme Court judge Njoki Ndungu from office with immediate effect.

In his latest complaint against the judge, Mboya calls into question her decision to suspend the judgment of the Court of Appeal that Deputy Chief Justice Kalpana Rawal and fellow Supreme Court judge Philip Tunoi should have retired at 70.

Overview
  • In his latest complaint against the judge, Mboya calls into question her decision to suspend the judgment of the Court of Appeal that Deputy Chief Justice Kalpana Rawal and fellow Supreme Court judge Philip Tunoi should have retired at 70.
  • Mboya contends that the circumstances under which the judgment was suspended are questionable given they were issued ex-parte and within minutes of the Court of Appeal decision.
  • "The honourable Justice Njoki Ndungu made monumental orders without according a hearing to the other parties affected by the order and who were ready by counsel and willing to make representation and one of whose counsel Charles Kanjama was sitting outside her chambers waiting to be heard."

Mboya contends that the circumstances under which the judgment was suspended are questionable given they were issued ex-parte and within minutes of the Court of Appeal decision.

“The honourable Justice Njoki Ndungu made monumental orders without according a hearing to the other parties affected by the order and who were ready by counsel and willing to make representation and one of whose counsel Charles Kanjama was sitting outside her chambers waiting to be heard.”

He also contends that Justice Ndungu had no business hearing the application before it rightfully went to the President of the Supreme Court, Chief Justice Willy Mutunga for allocation.

“Chief Justice is responsible for allocation of cases and empanelling the bench and in his absence the senior most judge which in this instance ought to have been Honourable Justice Mohammed Ibrahim who was available yet justice Ndungu with impunity allocated herself the file.”

He also argues that Justice Ndungu had no business hearing the application as she is among three Supreme Court judges found guilty of misconduct by the JSC for declaring themselves on the retirement dispute before the matter was before them.

“Having arrived at a determination of misconduct against the judges (Ndungu, Jackton Ojwang and Ibrahim), can the JSC admonish the concerned judges in lieu of forwarding the petition to the President as required by Article 168(4) of the Constitution?” he poses in his petition to the JSC.

READ: CJ, Supreme judges lock horns over judges retirement

He continues to argue that Justice Ndungu’s decision to schedule the inter-partes hearing of Rawal and Tunoi’s application for June 24 is questionable as it flouts procedure.

“The length of the purported conservatory orders from May 27 to June 24 is unreasonably long and an abuse of the judicial authority taking into account that conservatory orders last for not more than 14 days.”

It is however worth noting that Chief Justice Willy Mutunga has pushed the inter-partes hearing up to Thursday.

READ: CJ fast-tracks divisive Rawal, Tunoi case from June 24 to June 2

Mboya’s latest grievance is in support of an initial complaint made against Ndungu, Ojwang and Ibrahim for withdrawing their services, “in solidarity,” – Apollo states – with Rawal and Tunoi after they received retirement notices from the JSC.

A complaint he later modified to include their declaration that the JSC, “lacks competence to determine when a judge may perform their judicial duty.”

Mboya has already taken the JSC to court for failing to forward his complaints to President Kenyatta despite making the finding that Justice Ndungu, Ojwang and Ibrahim were guilty of misconduct when they made the above declaration.

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