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Justice Njoki Ndung'u sues the JSC
Justice Njoki Ndung'u.
Supreme Court judge Njoki Ndung’u has moved to the High Court to block her removal from office in petitions filed by former Cabinet Secretary Raphael Tuju and lawyer Nelson Havi.
In documents filed by lawyer Andrew Musangi, the apex court judge has launched an individual fight against the Judicial Service Commission (JSC), saying the ongoing process will trigger her automatic suspension from office and the formation of a tribunal to investigate her and her colleagues at Supreme Court.
She wants the JSC stopped from processing the petitions filed against her and six other Supreme Court judges, including Chief Justice Martha Koome.
Though the JSC proceedings concern three petitions – filed by Mr Tuju’s Dari Limited, Mr Havi and lawyer Christopher Rosan - the court papers indicate that Justice Njoki is not fighting the third petition.
Mr Tuju and Mr Havi together with Mr Rosana petitioned the JSC to axe the entire seven-judge bench over alleged incompetence and misconduct in handling various cases.
Justice Njoki is seeking interim orders suspending the JSC proceedings pending determination of her case against the Commission. She describes the ongoing ouster process as “unconstitutional and unfounded disciplinary proceedings”.
She states that the proceedings at the JSC are “a blatant intrusion into the judicial decision-making process” of judges and thus violate Article 160 of the Constitution, which guarantees judicial independence. She also believes that the proceedings are against the protection of judges from undue influence.
'Sub-judicial'
Justice Njoki argues that the petitions are improperly before the JSC since they touch on disputes that are pending in court or were determined.
On Mr Havi’s petition, Mr Musangi says the matter is sub-judice since issues raised are the subject of four ongoing cases at the High Court, Court of Appeal, Supreme Court and East African Court of Justice.
“The continuation of the proceedings before the JSC thus poses an imminent risk of irreparable harm and infringement of Justice Njoki’s nights and inflicting irreversible damage on her professional reputation and the integrity of the Judiciary. "
He adds: "Specifically, the proceedings threaten to trigger automatic suspension and the formation of a tribunal under Article 168(5) of the Constitution - amounting to an unlawful ‘de facto’ removal from office and inflicting irreversible damage on the petitioner's professional reputation and the integrity of the Judiciary.”
Faulting JSC for admitting the petitions, the lawyer says the Commission’s actions are characterised by the lack of defined procedural safeguards and an overextension of its statutory authority.
The petition is before Justice Lawrence Mugambi at the High Court Constitutional Division Milimani.