Njoki Ndung’u’s dissenting opinion set for scrutiny

The wording, tone and observations in the dissenting opinion of Supreme Court judge Njoki Ndung’u issued two weeks ago will be subjected to scrutiny after lawyer Apollo Mboya on Friday filed a petition to have her investigated, then sacked.

In a 440-page document, Justice Ndung’u detailed why she disagreed with four other judges of the top court in a petition filed by National Super Alliance leaders, challenging the outcome of the August 8 presidential election.

After analysing Justice Ndung’u’s remarks, Mr Mboya, the former CEO of the Law Society of Kenya, says she showed “lack of courtesy and civility towards the law and other judges”, contrary to the demands of the post she holds.

In his petition to the Judicial Service Commission, Mr Mboya wants Justice Ndung’u’s actions during the presidential petition to be considered misconduct.

This would be in addition to the misconduct finding the JSC made about her in May 2016 following another case he lodged when a section of the Supreme Court judges went on strike.


After that determination, Mr Mboya then wants the 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”.

Mr Mboya attacks various aspects of Justice Ndung’u’s dissenting opinion, one of which is her statement that she examined each of the original forms the Independent Electoral and Boundaries Commission deposited in the court registry.

“If this assertion is true, then Justice Njoki Ndung’u ought and must have examined each of the disputed forms on August 28 and 29 before she delivered her dissenting judgment on September 1, which she amplified in her detailed dissent judgment on September 20,” he says. “It is not humanly possible that she examined all the disputed forms from the date of hearing of August 28 to the date of summary judgment on September 1.”

Mr Mboya argues that Justice Ndung’u did not mention in her summary dissent opinion that she had scrutinised the forms, only to mention the matter in the full opinion.


“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,” he states.

Another aspect of her judgment that Mr Mboya focuses on is her numerous references to the majority.

He argues that her remarks showed “total lack of courtesy and civility towards her fellow colleagues on the bench of the Supreme Court and bad judicial temperament in her general attitude towards the law and other judges”.

Mr Mboya gives examples from five paragraphs of her opinion to illustrate his point.

One of them is where Justice Ndung’u said: “Although this court is not bound by its decisions and can review or depart from them, such considerations only ought to be in the clearest of cases, and distinguishable in fact, circumstances and relevance as elaborated in the foregoing paragraphs. The majority has failed this critical test.” The lawyer also takes issue with Justice Ndung’u’s statement that seeks to direct lower courts to disobey the majority decision where she said the judgment of the majority “does not usurp the jurisdiction of the lower courts in electoral disputes”.


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