Former Chief Justice Dr Willy Mutunga and Supreme Court Judge Njoki Ndung'u will face off in court on Tuesday after Justice Chacha Mwita allowed the duo to testify in the consolidated petitions by former Law Society of Kenya LSK Chief Apollo Mboya and Justice Ndung'u.
Mr Mboya had filed the petition to challenge Judicial Service Commission (JSC) decision to revoke the formation of a tribunal to investigate the conduct of Justice Jackton Ojwang' and Ndung'u for participating in an illegal strike which he claimed paralyzed the Supreme Court's operations.
The strike was to protest the decision of JSC to retire the then Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi after attaining the retirement age of 70 years.
JSC through lawyer Charles Kanjama applied to cross-examine Justice Ndung'u while the Supreme Court Judge applied to have the former Chief Justice take the witness stand in the event the commission's application is allowed.
Justice Ndung’u will be cross-examined on the contents of the minutes of the Supreme Court meeting filed in court after the former CJ accused her of falsifying them.
[caption caption="Former CJ Mutunga and Justice Ndung'u"]
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The former CJ on his part will be questioned by Justice Ndung'u's team regarding an affidavit he swore on August 7 disowning assertions by Justices Ojwang’ and Ndung’u that the decision by the Supreme Court judges to go on strike in 2015 was a collective one.
“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 of Justice Ndung’u were discarded, "he stated in his affidavit.
In response to Dr Mutunga, Justice Ndung’u accused the JSC, of "acting in concert with the petitioner Mboya to organize these proceedings against me and my fellow judges with the aim of condemning the judges of the Supreme Court unheard."
Mr Mboya wants JSC directed to investigate Justice Ndung’u’s conduct for participating in an illegal strike but the commission noted that the petition by Mr Mboya does not disclose any ground that would lead to the removal of a judge.
[caption caption="Former CJ Willy Mutunga and Justice Ndung'u"]
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Justice Mwita directed that the case will be mentioned on Monday to confirm the availability of the Supreme Court Judge and former CJ Dr Mutunga.
