Justice Njoki case: Court rules JSC has no mandate to investigate judges

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Supreme Court Judge Njoki Ndung'u. IMAGE/COURTESY

The High Court has declared that the Judicial Service Commission (JSC) has no mandate to investigate or discipline a judge.

The ruling was delivered on Thursday by Justice Weldon Korir in a petition in which Supreme Court Judge Njoki Ndung’u was contesting JSC’s attempt to admonish her over alleged gross misconduct.

In his ruling, Justice Korir established that JSC has no constitutional mandate to declare a judge guilty of misconduct.

“JSC is not mandated to administer any form of discipline against judges and therefore violated the Constitution by purporting to admonish the three superior court judges,” he ruled in the case in which Justice Njoki was represented by lawyer Andrew Musangi.

And he added, “the purported action taken against judges of the Supreme Court by JSC is unlawful and unconstitutional .”

The petition arose from accusations against Justice Njoki and two other judges of the apex court, that they had participated in an illegal strike in 2015.

The judge also declined lawyer Apollo Mboya’s request to direct JSC to send a petition to the President to appoint a Tribunal to probe the three judges, on claims that their action amounted to gross misconduct.

Justice Korir, in his ruling, said only a finding of gross misconduct merits the formation of a tribunal by the Head of State upon recommendation by the JSC.

“This court has no power to forward Mboya’s petition to the President since that power is expressly reserved for the JSC. The Commission having pronounced itself on the matter the Court cannot purport to usurp it’s powers,” he declared.

Mboya had sued the JSC for failing to recommend to the President formation of a tribunal for the removal of Justices Njoki, Jackton Ojwang and Mohammed Ibrahim from office for misconduct.

JSC had defended itself saying misconduct did not meet the threshold to warrant a recommendation for the appointment of a tribunal. Justice Korir who heard Mboya’s case with that of Justice Njoki contesting the decision by JSC to admonish her for alleged misconduct alongside her colleague’s has declared that JSC has no mandate to do so.

Consequently the judge has quashed a letter dated May 9, 2016, finding her culpable for punishment for ‘unbecoming conduct’ of a judge of the Supreme Court.

“The finding by this court that JSC took the judges through an administrative process does not sanitise the unconstitutionality that it does have authority,” the judge ruled.

However, the Court held that JSC had the power to hear and determine whether the judges had violated their oath of office by going on strike.

“To this end I find the JSC did not violate the judges’ right to fair administrative action with respect of the alleged downing of tools by the judges.”

In her suit papers, Justice Njoki had asked the Court to find the parameters within which the JSC can discipline a judicial officer.

SC, justice Korir added, cannot be faulted for the manner in which it handled the complaint against the judges hence justice Njoki’s claim that her right to fair administrative action was violated ‘fails’.

Justice Njoki denied participation in the illegal strike insisting it was a collective decision to protest retirement of justices Kalpana Rawal and Philip Tunoi because of quorum hitch.