Supreme Court judge Njoki Ndung'u [Photo|citizen digital]
The High Court will make a decision this month whether Judge Njoki Ndung’u will be cross-examined in connection with a strike at the Supreme Court two years ago.The strike by the judges of the supreme court in 2015 was a protest against JSC’s decision to retire the then Deputy CJ Kalpana Rawal and Justice Phillip Tunoi.Mboya wants JSC directed to investigate Justice Ndung’u’s conduct for participating in an illegal strike thereby paralysing the Supreme Court’s operations.However, through her lawyer Andrew Musangi, Njoki told Justice Chacha Mwita that should the court rule that she takes to the stand, former Chief Justice Willy Mutunga should also be subjected to the same.
He wants Justice Ndung’u cross-examined over the contents of minutes filed in court.Whereas Justice Ndung’u alleges that the move to ‘withdraw’ their services in solidarity with their colleagues who had been asked to retire at 70 years as per the Constitution was a collective decision, former CJ Mutunga has denied the claims.Mboya had initially filed a petition before the Judicial Service Commission (JSC), seeking the removal of Judges Ndung’u, Jackton Ojwang and Mohamed Ibrahim.The commission, however, reprimanded the judges. Both Justice Ndung’u and Mr Mboya moved to the High Court to challenge JSC’s decision. In a statement filed in court, JSC says that the petition by Mboya does not disclose any ground to would lead to the removal of a judge.The commission disclosed that it investigated the matter and found that the claims made in the petition did not meet the threshold required by the Constitution.On her part, Justice Ndung’u challenged JSC’s decision to admonish her, arguing that she was not accorded a fair hearing.The Supreme Court judge wants the High Court to determine the parameters through which the JSC can operate to avert any potential abuse of the commission’s powers which may erode the very independence of the Judiciary it is mandated to protect.