Judiciary wants orders barring Rawal, Tunoi exit set aside

May 31, 2016 4:44 pm
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He also questioned how Justice Ndungu (pictured) could grant orders suspending the Court of Appeal's judgment without first going through it given, Mansur avers, it could not have been attached to Rawal and Tunoi's applications for conservatory orders/CFM NEWS
He also questioned how Justice Ndungu (pictured) could grant orders suspending the Court of Appeal’s judgment without first going through it given, Mansur avers, it could not have been attached to Rawal and Tunoi’s applications for conservatory orders/CFM NEWS

, NAIROBI, Kenya, May 31 – The Judiciary and Judicial Service Commission have applied to have the orders stopping them from replacing Deputy Chief Justice Kalpana Rawal and Supreme Court Justice Philip Tunoi set aside by the Supreme Court this Thursday.

In an application filed by advocate Issa Mansur, the Judiciary and JSC are seeking to have the orders set aside on the grounds that Supreme Court Judge Njoki Ndungu deliberately flouted procedure when she issued orders suspending the Court of Appeal judgment that Rawal and Tunoi should have retired at 70.

Overview
  • In an application filed by advocate Issa Mansur, the Judiciary and JSC are seeking to have the orders set aside on the grounds that Supreme Court Judge Njoki Ndungu deliberately flouted procedure when she issued orders suspending the Court of Appeal judgment that Rawal and Tunoi should have retired at 70.
  • Mansur swears that there was no Certificate of Urgency accompanying Tunoi's application for conservatory orders and no supporting affidavit attached to the Certificate of Urgency that was later served on him.
  • He also questioned how Justice Ndungu could grant orders suspending the Court of Appeal's judgment without first going through it given, Mansur swears, it could not have been attached to Rawal and Tunoi's applications for conservatory orders.

Mansur argues that there was no certificate of urgency accompanying Tunoi’s application for conservatory orders and no supporting affidavit attached to the certificate of urgency that was later served on him.

“Lawson Ondieki (Tunoi’s advocate) was surprised to find me at the registry. I was curious as to when the application was prepared and bound for filing. When I perused the application I realised that there was no notice of appeal attached to the application or a certificate of urgency. Out of professional courtesy I pointed out this fact.”

He also questioned how Justice Ndungu could grant orders suspending the Court of Appeal’s judgment without first going through it given, Mansur avers, it could not have been attached to Rawal and Tunoi’s applications for conservatory orders.

“I personally attended immediately the registry but was informed that the judgment was not ready and to check later in the afternoon. I was back at the registry at 2pm but the judgment was still not ready.”

The Judiciary and Judicial Service Commission have also produced a duty roster authenticated by the Chief Registrar of the Judiciary Anne Amadi showing that Justice Ndungu was not the judge on duty and should thereby not have heard the application.

They also contend that it should have first gone to the Chief Justice for directions.

Mansur has also accused Justice Ndungu of failing to give him an audience, on behalf of the JSC, before granting Rawal and Tunoi’s applications ex-parte despite his making known his availability, at short notice, for arguments on any application for conservatory orders that may be made.

“Out of abundant caution I wrote a letter to the Deputy Chief Registrar of the Supreme Court informing her that the advocates for the Judiciary and JSC would be available at short notice for the hearing of any application for conservatory orders.”

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