Former Law Society of Kenya CEO Apollo Mboya has filed a petition seeking Supreme Court judge Njoki Ndung’u removal for “gross misconduct and misbehaviour.”
In the petition to the Judicial Service Commission (JSC) filed on Friday, bases his arguments on the full judgment Justice Ndung’u delivered on September 20, where she listed reasons for dissenting with the majority decision of four judges.
The advocate believes her 440-page judgement revealed that she exhibited “lack of courtesy and civility towards the law and other judges”. He lists five paragraphs from her verdict to buttress that statement.
The lawyer also singles out a statement in Justice Ndung’u’s decision that seeks to direct lower courts to disobey the majority decision.
“By dint of Article 163(7) of the Constitution of Kenya, the decision of the Supreme Court of Kenya is binding on the lower courts but Justice Njoki Ndung’u in paragraph 697 A of her dissent judgment disregarded the provision by directing the lower courts to disregard the decision of the Supreme Court,” he states.
Mr Mboya says Justice Ndun’gu lacks judicial temperament, professional competence and that she does not possess integrity, propriety, has no regard for equality and is incompetent.
He also questions her “substantive and procedural knowledge of the law, her “ability to maintain composure under stress” and her “ability to control anger and maintain calmness and order”.
“Hon Justice Njoki Ndung’u dishonestly ignored the forms tendered by the Independent Electoral and Boundaries Commission for scrutiny and based her dissenting judgment on forms and material that were not tendered for scrutiny.
“It was not humanly possible that Justice Njoki Ndung’u examined all the disputed forms from the date of hearing of August 28 to the date of summary judgement on September 1,” adds Mr Mboya.
As a matter of fact, the advocate says, in Justice Ndungu’s summary judgement of September 1 there was no mention of scrutinising the forms as she said in her full judgement.
His request to JSC is to view Justice Ndungu’s recent actions as an addition to what the commission found in a letter it wrote to her on May 9, 2016.
Having so done, he wants JSC to “initiate the necessary procedures for the removal of Justice Ndung’u for breach of the oath of office and for gross misconduct and/or misbehaviour incompatible with the status of a judge of a Supreme Court of Kenya”.
In her disagreed with her colleagues’ decision to nullify President Uhuru Kenyatta’s win.
She tore into key parts of the evidence, which informed the presidential election and faulted her colleagues for not using the certified forms filed in court by the electoral commission to verify the claims made by Nasa presidential flagbearer Raila Odinga.
The judge added that on the basis of an exercise whose findings were not in conformity with the forms presented by IEBC in court.
Where there were omissions, they could not affect the result of the election, and the court had the powers to inspect other materials to verify the integrity of the poll, she said.
Justice Ndung’u added that there could use. She cited various institutions which could verify the claims, including the commission itself, observers, the media, the public and any court hearing petitions.
“The lack of security features or signatures from agents as cited by Nasa, was not by itself a reason to invalidate the election,” she said.