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The sharp divisions that threatened to cripple the first Supreme Court bench is set to take a fresh twist when former Chief Justice Dr Willy Mutunga faceoff with Justice Njoki Ndung’u in open court on Tuesday.
The two are scheduled to appear before judge Justice Chaacha Mwita on Tuesday after the court allowed their prayers to testify in the consolidated petitions 204 and 218 of 2016 lodged by former Law Society of Kenya (LSK) chief executive, Apollo Mboya and Justice Ndung’u respectively.
Mboya lodged the petition to contest Judicial Service Commission's decision to object rather than ask the President to constitute a tribunal to investigate the conduct of Justices Jackton Ojwang’ and Ndung’u for taking part in an illegal strike that derailed the operations of the Supreme Court for weeks.
The two downed their tools to protest the JSC's decision to retire then Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi after attaining 70 years, which is the constitutional retirement age for judges. In his petition, Mboya wants the judges employer be ordered to investigate the conduct of Justice Ndungu for participating in an illegal strike.
In papers filed before the court, JSC said it investigated the matter and found that Mboya's claims failed to meet the threshold required by the Constitution. JSC, through lawyer Charles Kanjama sought to cross-examine Justice Ndung’u, while Justice Ndung’u applied to have Dr Mutunga take the witness stand in the event that judge Mwita allows JSC’s application.
Justice Ndung’u will be questioned on the details of the past minutes of the Supreme Court meeting filed in court. On the other hand, Njoki wants to cross-examine Mutunga after he swore an affidavit dated August 7th, disowning claims by Justices Jackton Ojwang’ and Ndung’u that the decision by the apex court judges to go on strike in 2015 was a unanimous one and also that Justice Ndung’u doctored the minutes of an October 6th, 2015 meeting of then Supreme Court bench.
In his affidavit, the former Chief Justice stated that “the said letter (notifying the withdrawal of services by a section of Supreme Court judges) was not authorised by a collective decision of the Supreme Court judges, and ought to be treated as the sole work of the three signatories to the said letter.”
“I recall very clearly that the notes taken by Judge Njoki for the latter portion of the said meeting were challenged in a subsequent meeting of the Supreme Court judges and rejected on the ground of inaccuracy. Thus, the minutes Justice Ndung’u were discarded," he said in his affidavit.
In response to Dr Mutunga, Justice Ndung’u accused JSC, of “acting in concert with the petitioner Apollo Mboya to orchestrate these proceedings against me and my fellow judges with the aim of condemning the judges of the Supreme Court unheard.”