JSC to probe Supreme Court Judge Njoki Ndungu over gross misconduct

The High Court in Nairobi has allowed the Judicial Service Commission to investigate Supreme Court Judge Lady Justice Njoki Ndung’u over alleged gross misconduct in her ruling on justices Philip Tunoi and Kalpana Rawal tenure in the judiciary.

In his ruling, Justice Joseph Onguto directed that JSC give Justice Njoki a fair hearing before making any decision against her.

While rejecting the challenge by the embattled judge to stop the commission from investigating her, Justice Onguto said the commission must be allowed to exercise its constitutional mandate in the interest of the public.

This follows a petition filed by former Law Society of Kenya Chief Executive Officer Apollo Mboya to the Judicial Service Commission demanding the removal of Justice Ndung’u for alleged gross misconduct.

In his petition, Mboya sought the Supreme Court judge’s removal from the bench a fortnight ago, after she shelved the Appellate Court’s verdict requiring Justices Kalpana Rawal and Philip Tunoi to retire from the court since they have attained the age of 70, as stipulated in the Constitution.

Mboya had accused the judge of having conflict of interest since she and two of her Supreme Court colleagues, Jackton Ojwang and Mohamed Ibrahim, already recused themselves on the issue of judges retirement age, when the matter was presented to them during the Bomet Senate election petition filed by Nick Salat of KANU.

Lady Justice Njoki had moved to court to stop the special JSC committee from probing her, arguing that if JSC were allowed to investigate her, then she would be suspended.

Lady Justice Njoki had issued the stay order as the duty judge until a case filed by Deputy Chief Justice Rawal and Justice Tunoi challenging their retirement is heard and determined by the Supreme Court.

On Friday, the Judicial Service Commission (JSC) however rejected a mediation proposal made by the Law Society of Kenya to resolve the stalemate triggered by the Rawal-Tunoi insistence on staying in office.

In a statement, JSC Vice Chair Prof Margaret Kobia said the matter is a constitutional issue and not negotiable, dealing a major blow to Rawal and Tunoi who had challenged their retirement at 70.

“This particular issue has been heard and determined by a total of twelve Judges of the Superior Courts who have all reached a unanimous determination that the retirement age is 70. Five in the High Court and seven in the Court of Appeal,” read the statement from the JSC in part.