Supreme Court judge on the spot over dramatic injunction

Supreme Court Judge Njoki Ndung'u addresses the court on July 21, 2015. Legal fraternity was caught by surprise as she gave stay orders on Rawal and Justice Philip Tunoi’s Court of Appeal ruling in record time. PHOTO | PAUL WAWERU | NATION MEDIA GROUP

What you need to know:

  • Justice Ndung’u’s order came hardly 30 minutes after the first one, a decision that was greeted with disbelief.
  • Lawyers Charles Kanjama and Issa Mansour, acting for the JSC, made frantic calls to Chief Justice Willy Mutunga informing him of what was about to happen.
  • Dr Mutunga is said to have sent his driver to collect the case files and take them to his residence so he could peruse through them and advise.
  • Former Law Society of Kenya Secretary Apollo Mboya on Saturday revealed that he would be lodging a petition asking the JSC to start the process of removing Justice Ndung’u as a judge.

The speed with which Supreme Court Judge Njoki Ndung’u issued a prohibitory injunction on a Court of Appeal decision sending Deputy Chief Justice Kalpana Rawal to retirement has raised eyebrows and shone a light on the vicious efforts to control the institution amid a succession process that could see several judges replaced.

Lawyers estimate Justice Ndung’u’s order came hardly 30 minutes after the first one, a decision that was greeted with disbelief as legal observers accused the judge of acting without studying the judgement from the Appeal court.

The revelation came as the Sunday Nation learned that the Judicial Service Commission (JSC) has called an emergency meeting tomorrow to deliberate on Friday’s events which have sent shock waves across the legal fraternity and among Kenyans.

A lawyer privy to backroom events preceding Ms Ndung’u’s pronouncement said the application was made within 10 minutes of the Appellate court ruling that judges should retire at 70 years.

“This was extremely fast making one wonder whether they knew the Court of Appeal’s outcome beforehand. Part of our concern is that this is special treatment that an ordinary litigant cannot get,” the lawyer said.

But it is the dramatic events which preceded declaration of the conservatory order on Friday that have startled many and exposed the underhand activities and vested interests involved in the high-profile succession politics that threatens to bring down Kenya’s highest court.

ISSUE STAY ORDERS

An impeccable source at the Supreme Court told the Sunday Nation that lawyers Charles Kanjama and Issa Mansour, acting for the JSC, one of the parties to the suit, made frantic calls to Chief Justice Willy Mutunga who was at his residence at the time of the Appeal Court ruling, informing him of what was about to happen.

The lawyers were seeking Dr Mutunga’s intervention as they were convinced that Ms Ndung’u would issue the stay orders.

Dr Mutunga is said to have sent his driver with express instructions to collect the case files and take them to his residence so he could peruse through them and advise.

This turned out to be a step too late as when the driver arrived, Justice Ndung’u, the duty judge, was already listening to the ex-parte application from the lawyers of the Deputy Chief Justice and thus could not be interrupted.

Earlier in the day, lawyers Mansur and Ahmednasir Abdullahi had written to the Supreme Court warning against stay orders being issued ex-parte. They may have seen it coming.

Former Law Society of Kenya Secretary Apollo Mboya on Saturday revealed that he would be lodging a petition asking the JSC to start the process of removing Justice Ndung’u as a judge.

He vowed to present the petition to the JSC “by 8am on Monday”.

The petition, seen by the Sunday Nation, says Justice Ndung’u committed gross misconduct when she “grabbed a court file and purported to constitute her single Supreme Court Bench to hear the matter ex-parte and grant orders”.

The Sunday Nation has gathered that there was heightened “consultation” between a registrar from the court and two Supreme Court judges before the order was pronounced, something critics have pounced on to question the decision.

Mrs Rawal, who turned 70 in January and her colleague in the Supreme Court Philip Tunoi, had moved to the Court of Appeal to challenge a decision by the High Court that the retirement age for judges is 70. The Appellate court issued its landmark judgment on Friday effectively sending them into retirement immediately. Mr Tunoi is 72 and is being investigated by a tribunal over claims that he received Sh200 million to influence an election petition case in favour of Nairobi Governor Evans Kidero. He has denied the accusation.

Justices Rawal and Tunoi have argued that they were appointed under the old Constitution when retirement age was 74 as provided by the Judicature Act and preserved by the transitional clauses. The current Constitution, however, puts retirement age at 70.

Upon delivery of the judgment at noon, Justice Rawal immediately filed an application under Section 24 of the Supreme Court Act for a stay which was granted by Ms Ndung’u.

Section 24 of the Supreme Court Act, however, provides that any person dissatisfied with the decision of one judge in the exercise of a power to issue conservatory orders is entitled to have the matter determined by a bench of five judges. Therefore, a two or three judge bench of the Supreme Court cannot override the stay already granted which effectively hands Justice Rawal a lifeline, at least for now.

The Sunday Nation understands a senior judiciary official got a show-cause letter for “failure to follow directions of the Chief Justice” in what points to vicious succession politics at the Supreme Court with talk that there are two main camps advancing opposing agenda that could paralyse the institution.

Dr Mutunga retires on June 16 and will, therefore, not sit at the all-party hearing on June 24.

CONFLICT OF INTEREST

But in a sign that the top court in the Judiciary is set for a long period of turmoil, lawyer Paul Muite, who represented JSC in the case, said his team will ask three Supreme Court judges, Jackton Ojwang, Ms Njoki and Ibrahim Mohamed to step down from hearing the matter. If successful, this will effectively deny the court quorum as it would mean only Justice Smokin Wanjala presides.

Sources, however, indicate that the court may not have a quorum already since Justice Ibrahim Mohamed is away on medical leave.
As this happens, the JSC, the administrative organ of the Judiciary, convenes an emergency session tomorrow following the two watershed decisions that have plunged the Judiciary into a crisis.

The meeting will examine the implications of the decision by the Court of Appeal to send the Deputy Chief Justice and Justice Tunoi on retirement as well as the stay order.

The decisions have brought up serious questions of conflict of interest since the retirement of the Chief Justice next month will see Justice Rawal act as president of the highest court in the land yet the same court will be handling a matter in which she is directly involved.

While some of JSC members were on an official trip in the United States, sources in the Judiciary told the Sunday Nation they had been requested to cut short their trip to attend the meeting. Most of them were expected in the country this evening.
The meeting, another source said, would explore ways of negating the stay.

On Saturday, the chief registrar of the Judiciary Anne Amadi said the matter was evidently weighty but was reluctant to offer specifics. She said there is urgent need for JSC to reflect on what the decisions mean and offer guidance.

“It (JSC) will decide what action should be taken, whether we should wait for any further decision of the Supreme Court or not,” she said.
She further said that any matter arising out of the two decisions would be dealt with “judiciously”.

With Dr Mutunga as its chairman, other members of the Commission are Justice Smokin Wanjala and Justice Mohamed Warsame (Court of Appeal), Justice Aggrey Muchelule (High Court), Prof Tom Ojienda (LSK), Attorney General Githu Muigai, Emily Ominde, Mercy Deche (LSK), Prof Margaret Kobia (Public Service Commission), Kipng’etich Arap Korir Bett and Winifred Guchu.

But even as the JSC meets, it is emerging that competing powerful forces are out to determine the next CJ and deputy CJ.

At the heart of the ongoing intrigues are two powerful and diametrically opposed players some from Jubilee administration and others from the judiciary aided by at least two Senior Counsel who are engaging in a high stakes games.

While one of the factions believe the two plum positions cannot be left vacant at the same time, the other one feels Dr Mutunga should extend his stay in office to at least the end of the year as his deputy is sought.

Additional reporting by Elvis Ondieki