The High Court will this month decide whether Judge Njoki Ndung’u will be questioned in connection to a strike at the Supreme Court two years ago.
And although the judge has opposed her cross-examination, her lawyer Andrew Musangi 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.
The application to cross-examine the judge was made by Apollo Mboya who has filed a petition, seeking her removal.
Mr Mboya 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.
Mr 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.
The strike by the judges of the apex court in 2015 was a protest against JSC’s decision to retire the then Deputy CJ Kalpana Rawal and Justice Phillip Tunoi.
Mr Mboya wants JSC directed to investigate Justice Ndung’u’s conduct for participating in an illegal strike thereby paralysing the Supreme Court’s operations.
JSC says in a statement filed in court that the petition by Mr Mboya does not disclose any ground to would lead to the removal of a judge.
The commission said 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.
Attorney-General Githu Muigai has also opposed the suit, stating that the petition is misconceived as allegations made by the by Mr Mboya, baseless.
The AG further said the petition does not disclose grounds for the removal of a judge.
Prof Muigai further said that grounds for the removal of a judge must be serious or gross misconduct or the judge is incapable of discharging his or her mandate, as per the Constitution, international best practices and in order to preserve the independence of the Judiciary.
The case will be mentioned on November 17.