Justice Njoki Ndung’u fights to stop probe

A Supreme Court judge at the centre of a retirement age dispute on Tuesday asked the High Court to stop the Judicial Service Commission from investigating her.

Justice Susanna Njoki Ndung’u claimed the commission lacked jurisdiction to investigate her over allegations of misconduct.

Through lawyers Andrew Musangi, Jared Mutegi and Steve Kimathi, she argued that her rights were likely to be violated and that she could be suspended if she was under investigations.

“This case raises matters that are of significant public interest in that the Judicial Service Commission (JSC) plays a role of prime national importance, in particular, the protection of the independence of the judiciary,” said Mr Musangi.

Former Law Society of Kenya chief executive Apollo Mboya had presented a petition to the commission, seeking the removal of Judges Jackton Ojwang’, Mohammed Ibrahim and Ndung’u last year, claiming they had engaged in misconduct by going on a go-slow in solidarity with Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi, who are fighting their retirement at 70.

Mr Mboya accused them of being part of the bench that ruled that judges appointed under the old Constitution should retire at 74, days before the JSC declared 70 years as the retirement age.

He accused them of determining a matter that was not before them in order to influence the outcome of the cases in which Justices Rawal and Tunoi had challenged the retirement age.

The verdict was issued in an election petition involving Kanu Secretary-General Nick Salat on the Bomet senatorial seat, which he lost to Wilfred Lesan.

On Monday, Mr Mboya presented a second petition to the JSC, seeking to have Justice Ndung’u removed from office for single-handedly issuing orders barring the two from retiring at 70.

Mr Mboya said the orders given last Friday were issued about 30 minutes after the Court of Appeal ruled that Justices Rawal and Tunoi must retire at 70.

In her application yesterday, Justice Ndung’u wants the court to determine the constitutional mandate of the JSC with regard to the independence of judges and the legality of the commission in attempting to suspend a judge.

She is also seeking a temporary order stopping the JSC from getting into a process that could lead to the formation of a tribunal to investigate her.

High Court Judge Joseph Onguto will rule on Monday.