Justice Ndungu in her ruling echoed Justice Ojwang’s contention that the Chief Justice should not have vacated the date she had set for the inter-partes hearing citing that none of the parties had challenged her orders.
“I find that the directions of the Chief Justice of changing the date of return for inter-partes hearing are in contravention of Section 24 of the Supreme Court Act and are tantamount to interference of the independence of the judge,” she said.
In defence, CJ Mutunga said he relied on powers given to him by the Constitution which allows him to alter dates, time and place of hearing cases.
“The CJ did not take the file from Judge Njoki or vary the orders. He only directed a bench of five judges to hear the matter. The CJ relied on administrative powers provided in the rules,” he explained.
Justice Ndungu while issuing her ruling argued that it was premature for the Supreme Court judges to disqualify itself from hearing Omtatah’s application before the inter-partes hearing.
“The correct manner to vacate would have been at the inter-partes hearing. We have not reached that stage. A finding to vacate orders for temporary stay at this stage is therefore premature and is not within any known procedure that I know of.”
Furthermore, without an inter-partes hearing, she explained, the applicants would not know if they had been granted a stay of the judgment or not.
It was her decision that the orders of May 27 should not have been vacated to allow for the inter-partes hearing.
“Ex-parte orders do not lapse, they have to be lifted and only after the primary litigants are heard in an inter-partes hearing; this has not been done,” Justice Ndungu stated.
She further differed with Justice Ibrahim’s reliance on conflict of interest arguing that Rawal had not raised complaints against any of the Supreme Court Judges.
“The primary applicant, namely Justice Rawal herself has not raised the issue of an impartial bench, bias or prejudice that would arise if the bench as currently constituted would sit on her matter. In fact she says she has no any issues with any of the judges,” Justice Ndungu explained.
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