Njoki Ndung'u Drama

[Reticent Solipsist]

In this Mutunga court, which of the judges would you consider to have a progressive tilt and who are the conservatives?

On Njoki Ndung'u, I find her behavior highly unethical -- probably impeachable. She comes across as lacking the temperament and the judgement to sit on the SCOK. It just boggles the mind how some of these folks ended up in the highest court of the land.

My view as well.   And what I find even more staggering is that, apart from the obligatory noises from the LSK etc., the "legal fraternity" is not in arms over this, given the long-term implications of having SC judges who go rogue and get away with it.   

Interestingly, I find many appellate judges better grounded on the issues than the majority of these folks at the SCOK.

I too have noted this.    One hopes that the next CJ will come from that lot.

First, it seems that Ndung'u hardly gave a thought to the little matter of how her actions undermine the trust bestowed upon her as a SCOK Justice, and to the institution in general.

Second, it would be interesting to hear what her legal reasoning was in making the decision she did on this issue and also on the "strike" issue where she rears her head again alongside the two associate justices.

But, as things stand today, if the court were to be totally reconstituted, then it would play perfectly into the hands of Uhuru and his AG.

[RV Pundit]

Compared to what Mutunga did; Njoki did nothing illegal. She was the duty judge of the day and consulted Ojwang who was around --and she issued ex-parte orders to retain the status quo--and that is logically--Rawal as DCJ cannot go home --until this matter is heard.Mutunga then comes and vary the orders from a fellow judge...without quoting what laws give him those rights.

Mutunga and JSC should have listen to the counsel longtime to have this mediated --because eventually this will end in supreme court--and you have a stalemate that is not easy to resolve.

Mutunga has less than 2 weeks to wreck havoc...and boy I cannot wait to see his back.

First, it seems that Ndung'u hardly gave a thought to the little matter of how her actions undermine the trust bestowed upon her as a SCOK Justice, and to the institution in gt eral.

Second, it would be interesting to hear what her legal reasoning was in making the decision she did on this issue and also on the "strike" issue where she rears her head again alongside the two associate justices.

But, as things stand today, if the court were to be totally reconstituted, then it would play perfectly into the hands of Uhuru and his AG.

[MOON Ki]

Compared to what Mutunga did; Njoki did nothing illegal. She was the duty judge of the day and consulted Ojwang who was around --and she issued ex-parte orders to retain the status quo--and that is logically--Rawal as DCJ cannot go home --until this matter is heard.Mutunga then comes and vary the orders from a fellow judge...without quoting what laws give him those rights.

Huh?   Even if one ignores the haste and manner in which she acted, the essence of Njoki's orders was that nothing changes before a hearing; Mutunga did not change that.   What Mutunga did was to compose a bench to hear the case, which is within his administrative powers and indeed required of him.   Having done that, he then set a date for the hearing; that too is within his administrative powers.   

 I have read the legal arguments in the matter and find them superficial in the extreme.   They deliberately confuse a judicial decision (that Rawal stays until ...) with an administrative decision (a date).    Kenyan law actually gives the Chief Justice enormous discretionary powers in administration, allowing him to do whatever he chooses in administrative matters---specifically that he may act as he sees fit to "direct and control the judiciary".   

And what is this business of consulting Ojwang'?   What is it that makes Ojwang that special in the court?   And what was the quality of this "consultation", given  the speed with which the orders were issued?   In fact, Ojwang' was the worst person to consult, given that he too had previously misbehaved in this matter.    To avoid any issues regarding the perception of impartiality, in such a significant matter, if she had to consult anyone, it should have been a person who had not been involved and preferably the CJ.   To say that Ojwang was the one who happened to be around won't fly because there was no reason to act within half-an-our of appellate court's session.

[RV Pundit]

The speed depended on Rawal lawyers getting the certified copy of the court of appeal rulling and immediately appealing at supreme court. I think there is nothing wrong with the speed. In fact such kinds of speed is what Mutunga should be encouraging and be proud of. The judiciary business is to speedily resolve any issues. Ex-parte orders to have DCJ continue as such for 2 weeks...that for me is the only logical think to do.

Mutunga and his groupies has a problem with Nduku set date because Mutunga would essentially have retired...and he wants to have a say in the matter. Mutunga has a self-imposed retirement that is 1yr ahead of when he is legally supposed to retired...therefore if he wants to listen to this and more cases...he can simply rescind the decision to retire and have one full year to deliberate on this weighty issues of 70 versus 74 from his colleagues.It not Njoki mistake at all. Mutunga want to continue playing a partisan hand in JSC and supreme court....let him continue! He has no legacy in any case to retire into!

I know Mutunga has a lot of administrative power and he has done no much with it. Except now when he faces a self-imposed deadline and he has to break the law (at least according to Rawal). Mutunga & DCJ are allowed to select judges and set dates when cases come through initially....but I doubt he has the right to intrude into dates already set by a duty judge.

Huh?   Even if one ignores the haste and manner in which she acted, the essence of Njoki's orders was that nothing changes before a hearing; Mutunga did not change that.   What Mutunga did was to compose a bench to hear the case, which is within his administrative powers and indeed required of him.   Having done that, he then set a date for the hearing; that too is within his administrative powers.   

 I have read the legal arguments in the matter and find them superficial in the extreme.   They deliberately confuse a judicial decision (that Rawal stays until ...) with an administrative decision (a date).    Kenyan law actually gives the Chief Justice enormous discretionary powers in administration, allowing him to do whatever he chooses in administrative matters---specifically that he may act as he sees fit to "direct and control the judiciary".   

And what is this business of consulting Ojwang'?   What is it that makes Ojwang that special in the court?   And what was the quality of this "consultation", given  the speed with which the orders were issued?   In fact, Ojwang' was the worst person to consult, given that he too had previously misbehaved in this matter.    To avoid any issues regarding the perception of impartiality, in such a significant matter, if she had to consult anyone, it should have been a person who had not been involved and preferably the CJ.   To say that Ojwang was the one who happened to be around won't fly because there was no reason to act within half-an-our of appellate court's session.

[MOON Ki]

The speed depended on Rawal lawyers getting the certified copy of the court of appeal ruling and immediately appealing at supreme court. I think there is nothing wrong with the speed. In fact such kinds of speed is what Mutunga should be encouraging and be proud of.

Yet the other parties have raised serious issues on the point of speed.  All sorts of legal types have commented on that.   And there are also quite a few others who are not directly involved but have  also raised questions on the matter.   You can find them all over the place.  Here is one that is likely to be read by many Kenyans:

http://www.nation.co.ke/oped/Opinion/It-is-dangerous-when-actions-of-judges-fail-moral-test/-/440808/3231540/-/p1x52wz/-/index.html

We can go back-and-forth on the speed with which Njoki Ndungu acted, but let us here speed up things things.   Let's proceed on the simple basis that any and all  speed is good.   If so, then Mutunga is in fact practicing what he preaches, and Rawal et. al. ought to be pleased that they will now not have to wait for 3 weeks.   

I know Mutunga has a lot of administrative power and he has done no much with it.

According to you.  And if I ask for details on what he should have and could have and might have ...  done, I will be referred to Google, right?    No need to go that route again.   

And it depends on where you look .... One example in which he has helpfully used his administrative powers is to develop  a standard "operations manual" for all high court judges.  (Incidentally, the manual also tells them how they are to go about issuing hearing dates.)

Here is another example: Sentencing in Kenya (especially in petty crime) has largely been bizarre, illogical, non-uniform ... hungry guy steals chicken and gets 7 years, hardly any allowances for mental illness, etc.   A huge part of the problem has been that the Kenyan judiciary has not had any real sentencing guidelines; contrast that with other places, e.g. the UK,  and especially in how  otherwise harmless first-offenders are dealt with.    Thanks to Dr. Studs' leadership, Kenya now has some guidelines (even if they can be improved upon):

http://kenyalaw.org/kenyalawblog/sentencing-policy-guidelines/

And so on, and so forth. 

Anyone who genuinely wants to know of Mutunga's impact on the Kenyan judiciary should look beyond titillating headlines in the daily rags.   

Except now when he faces a self-imposed deadline and he has to break the law (at least according to Rawal).

Rawal thinks so?  No kidding !?!?  My my, what a surprise.

I doubt he has the right to intrude into dates already set by a duty judge.

Actually judges---and lesser judges at that---all over the world routinely  change hearing dates that have been set by other judges, even in places where judicial independence is taken extremely seriously.   Here is a typical instance, which will probably be happening in Kenya right now, with the transfer of judges:  A judge takes over a case part-way; he or she decides that there is a lot of material to go through; he or she then changes a hearing date.  No problem with that; what they must not do is to change judicial decision.   (Except for dates and timelines  explicitly laid down in law, the absurdity in claiming that a change of dates is necessarily a change in a judicial decision should be apparent if one thinks it through to what it would mean for appeals.

[MOON Ki]

It's rare that the paperwork should go up so quickly ... here's the appellate court's decision:

http://kenyalaw.org/caselaw/cases/view/122357/?platform=hootsuite

(Of the whole thing, I reflected most on the "preamble" and what it suggests of the judges as they went about this task.)

It is clear from this and the half-arsed agreement that some people came up with, but which the has JSC quite rightly rejected, that Rawal simply wants two things: one, to taste, however briefly, the powers of a CJ; two, to get paid for 4 more years, even if she does no work.   

Looking at this decision, in which the appellate court appears to have done its homework, it will be interesting to see what new arguments she has.

[RV Pundit]

Rather than telling us about what others (with vested interests of course) have said..tell us what is wrong with what Njoki did. Nothing. Rawal lawyers were quick to ask and it was more than given Rawal was going to continue as DCJ as long as it takes...the supreme court as the last court to ventilate on this.

It easy...rather than Mutunga and his groupies..behaving in panic..as they realize Rawal is becoming CJ in few weeks...Mutunga can stay in for one more year..and attempt one again to manage his succession!

Mutunga is complete failure and that for me is rather too obvious. The judiciary is as rotten as it was. The backlog has yet to resolved. Judges are still out there issuing sub-standard judgement in exercise books. There has been very little done to modernize the courts, to improve the speed of justice delivery and to give justice to people.

The speed depended on Rawal lawyers getting the certified copy of the court of appeal ruling and immediately appealing at supreme court. I think there is nothing wrong with the speed. In fact such kinds of speed is what Mutunga should be encouraging and be proud of.

Yet the other parties have raised serious issues on the point of speed.  All sorts of legal types have commented on that.   And there are also quite a few others who are not directly involved but have  also raised questions on the matter.   You can find them all over the place.  Here is one that is likely to be read by many Kenyans:

http://www.nation.co.ke/oped/Opinion/It-is-dangerous-when-actions-of-judges-fail-moral-test/-/440808/3231540/-/p1x52wz/-/index.html

We can go back-and-forth on the speed with which Njoki Ndungu acted, but let us here speed up things things.   Let's proceed on the simple basis that any and all  speed is good.   If so, then Mutunga is in fact practicing what he preaches, and Rawal et. al. ought to be pleased that they will now not have to wait for 3 weeks.   

I know Mutunga has a lot of administrative power and he has done no much with it.

According to you.  And if I ask for details on what he should have and could have and might have ...  done, I will be referred to Google, right?    No need to go that route again.   

And it depends on where you look .... One example in which he has helpfully used his administrative powers is to develop  a standard "operations manual" for all high court judges.  (Incidentally, the manual also tells them how they are to go about issuing hearing dates.)

Here is another example: Sentencing in Kenya (especially in petty crime) has largely been bizarre, illogical, non-uniform ... hungry guy steals chicken and gets 7 years, hardly any allowances for mental illness, etc.   A huge part of the problem has been that the Kenyan judiciary has not had any real sentencing guidelines; contrast that with other places, e.g. the UK,  and especially in how  otherwise harmless first-offenders are dealt with.    Thanks to Dr. Studs' leadership, Kenya now has some guidelines (even if they can be improved upon):

http://kenyalaw.org/kenyalawblog/sentencing-policy-guidelines/

And so on, and so forth. 

Anyone who genuinely wants to know of Mutunga's impact on the Kenyan judiciary should look beyond titillating headlines in the daily rags.   

Except now when he faces a self-imposed deadline and he has to break the law (at least according to Rawal).

Rawal thinks so?  No kidding !?!?  My my, what a surprise.

I doubt he has the right to intrude into dates already set by a duty judge.

Actually judges---and lesser judges at that---all over the world routinely  change hearing dates that have been set by other judges, even in places where judicial independence is taken extremely seriously.   Here is a typical instance, which will probably be happening in Kenya right now, with the transfer of judges:  A judge takes over a case part-way; he or she decides that there is a lot of material to go through; he or she then changes a hearing date.  No problem with that; what they must not do is to change judicial decision.   (Except for dates and timelines  explicitly laid down in law, the absurdity in claiming that a change of dates is necessarily a change in a judicial decision should be apparent if one thinks it through to what it would mean for appeals.

[RV Pundit]

So what? They are not the final court in this or any matters. And most of them are probably eyeing promotion to those post anywhere. So many vested interests.

The supreme court is already dysfunctional and this is matter they have to sort of "recluse" themselves...so MEDIATION is the only sensible way out of this..if JSC cannot see that...and want to dig in...then how do they propose this will be resolved?

Maybe Mutunga can work his magic in the few weeks remaining!

It sensible to pay them the remainder 4 yrs and let them leave...these judges left lucrative careers as lawyers to become judges....probably coz of 74 yr tenure.

It's rare that the paperwork should go up so quickly ... here's the appellate court's decision:

http://kenyalaw.org/caselaw/cases/view/122357/?platform=hootsuite

(Of the whole thing, I reflected most on the "preamble" and what it suggests of the judges as they went about this task.)

It is clear from this and the half-arsed agreement that some people came up with, but which the has JSC quite rightly rejected, that Rawal simply wants two things: one, to taste, however briefly, the powers of a CJ; two, to get paid for 4 more years, even if she does no work.   

Looking at this decision, in which the appellate court appears to have done its homework, it will be interesting to see what new arguments she has.

[Kim Jong-Un's Pajama Pants]

Speedy justice is great.  Is it the same thing as rushed judgment?   Most lawyers impressed by the under 30 minute decision may be of the view that it's unlikely or improbable that Njoki Ndung"u carefully read the ruling, let alone digest and understand the motivations and legal reasoning, within 30 minutes.

Could it be argued that she must have known this case like the back of her hand, having previously been involved in a go slow over the same matter?

[RV Pundit]

The case is simple and straightforward. There was no judgement issued. Njoki issued ex-parte orders to maintain the status quo and set the date for hearing of the case. I don't see how another judge including Mutunga would have acted differently.

Obviously Njoki and other colleagues of at supreme court have already "ruled" on this issues previously...so they don't even need 30minutes to dismiss lower court reasoning..and they are likely to return the same verdict.

Mutunga and JSC instead of showing leadership by refering this to mediation and accepting mediation are playing politics.

Now the hard part is...where do we go from HERE? 3 judges have made their decision known. 2 others are colleagues who may recluse themselves. One is suspended. One is Rawal. Who will decide on this?????????

Mediation resolution make sense to me...let Rawal stay until december and she retires with full pay for 74yrs.

Speedy justice is great.  Is it the same thing as rushed judgment?   Most lawyers impressed by the under 30 minute decision may be of the view that it's unlikely or improbable that Njoki Ndung"u carefully read the ruling, let alone digest and understand the motivations and legal reasoning, within 30 minutes.

Could it be argued that she must have known this case like the back of her hand, having previously been involved in a go slow over the same matter?

[RV Pundit]

More drama. So the only Judges who can hear these are members of JSC..who are the respondent as part of JSC. This can only go through mediation/arbitration.

2 Judges (Tunoi & Rawal) are the petitioners. 3 judges are part of JSC(Mutunga,Rawal and Smokin) are the respondent; the remaining 3 judges (Ojwanga,Njoki and Ibrahim) have already made their view known in Salat petition that retirement age for old judges is 74.

This is legacy of the stud man who should never have been the CJ.

http://www.businessdailyafrica.com/Rawal-wants-case-heard-after-Mutunga-exit/-/539546/3237020/-/webdso/-/index.html

[Kim Jong-Un's Pajama Pants]

More drama. So the only Judges who can hear these are members of JSC..who are the respondent as part of JSC. This can only go through mediation/arbitration.

2 Judges (Tunoi & Rawal) are the petitioners. 3 judges are part of JSC(Mutunga,Rawal and Smokin) are the respondent; the remaining 3 judges (Ojwanga,Njoki and Ibrahim) have already made their view known in Salat petition that retirement age for old judges is 74.

This is legacy of the stud man who should never have been the CJ.

http://www.businessdailyafrica.com/Rawal-wants-case-heard-after-Mutunga-exit/-/539546/3237020/-/webdso/-/index.html

I think the Supreme Court can decide that they don't have to hear this case, the above being one of the reasons.  That way the court of appeal has the final decision.

[RV Pundit]

Yeah that is what is likely to happen now. And in any case supreme court has lost it and should be disbanded together with IEBC. Those court of appeal judges should be promoted to Supreme Court. Court of Appeal had conducted itself so far far better than Supreme court.

I think the Supreme Court can decide that they don't have to hear this case, the above being one of the reasons.  That way the court of appeal has the final decision.

[Reticent Solipsist]

If this seventy year old retirement rule wasn't grandfathered into the 2010 Constitution why would anyone even contemplate bringing it up after the fact? A first week first year law student could see through this facade.

This is a frivolous case, and when this case is thrown out - as it will - l would hope that Rawal and Tunoi are asked to pay the Kenyan taxpayer for a wasting Wanjiku's resources.

[MOON Ki]

Mutunga is complete failure and that for me is rather too obvious. The judiciary is as rotten as it was. The backlog has yet to resolved. Judges are still out there issuing sub-standard judgement. There has been very little done to modernize the courts, to improve the speed of justice delivery and to give justice to people.

That is what I call a manamba view.    Quick commentary on some of the above:

(i) Red:  As a general rule, in any organization, the speed with which work gets done depends on at least (a) the number of workers available,  and  (b) the complexity of the work to be done.    Taking just (a), the number of judges depends on parliamentary budget allocations and the JSC.   The CJ is very limited in that regard.  And even if the JSC were minded to hire a zillion judges, it cannot.   

(ii) Blue: As I have already noted, the "Vetting" got rid of the worst lot, but it did  not, and could not, have improved the quality of the remaining lot.   And neither could the CJ: he does not have  powers to fire low-quality types and replace them with a better bunch.   (This is also relevant for (i).)

(iii) Green: If you really want to find out, it is there.   But why let facts get in the way of a "good" argument.   

[Simanova]

Today's events have shown exactly what many believed would happen to have been an easy prophesy. It is an indictment of the court and proof of its utter hopelessness. The apex court unable to pronounce itself on the succinct issue of the day! Not because it lacked quorum but because the incompetence and lack of foresight punctured it along the way.

What fool would not have known that the case winding up ward in the lower courts will one day reach that bench? That by pronouncing themselves on the matter, without excuse and invitation they were prejudicing themselves beyond repair?

On the bright side, we have seen their ineptitude laid before us like beans on the ground at full noon. For four judges to openly say they were competent to handle a matter wanjiku clearly sees conflict of interests and bias is shameful beyond redemption. That Rawal can state that let the cJ retire and give me his seat so I can set up a bench and hear my own case is gross. One wonders what other mischief she has committed along the way hidden in the pile of court papers unread and unreported by our stupid media? How such a creature could have ended up a heart beat away from the CJ post will be a question to be pondered by historians and better legal minds to come.

[RV Pundit]

Color coded nonsense. The simple point is this. As CJ Mutunga retire this week; is he proud of his tenure or not. Of course not. He can blame everyone. But parliament raised judiciary budget from 3b to 17B. Mutunga claims backlog has reduced from 1m to 400k cases, that judiciary is now collecting 3b from 0.5b and that he has courts all over. But for me that still qualify for a failure. This institution which was given a fresh slate..with vetting, independence, own budget and name it...and yet it done so little..and the very bench he sits in..the very highest court..now is in shambles.

Incoming CJ basically has nothing more to ask. Except to do their job.He has all the tools. Get to work like Justice Mumbi Ngugi and everyone will applaud you even if you name is Ngugi. Mutunga has completely failed. The few brights specks for me have been the likes of Mumbi, Lenaola and the high court of Kenya's Constitutional and Human Rights Division

That is what I call a manamba view.    Quick commentary on some of the above:

(i) Red:  As a general rule, in any organization, the speed with which work gets done depends on at least (a) the number of workers available,  and  (b) the complexity of the work to be done.    Taking just (a), the number of judges depends on parliamentary budget allocations and the JSC.   The CJ is very limited in that regard.  And even if the JSC were minded to hire a zillion judges, it cannot.   

(ii) Blue: As I have already noted, the "Vetting" got rid of the worst lot, but it did  not, and could not, have improved the quality of the remaining lot.   And neither could the CJ: he does not have  powers to fire low-quality types and replace them with a better bunch.   (This is also relevant for (i).)

(iii) Green: If you really want to find out, it is there.   But why let facts get in the way of a "good" argument.   

[MOON Ki]

Color coded nonsense.

You seem to have trouble with even very simple logic, so I thought some colour-coding might help.

Mutunga claims backlog has reduced from 1m to 400k cases, that judiciary is now collecting 3b from 0.5b and that he has courts all over.

Yes, that certainly looks like failure.

[RV Pundit]

It a failure when to the budget was increase 5-6 times...and you only have backlog halving. If it use to take 3yrs to hear a case..now it takes 1.5yrs. That might seem like progress...but it isn't.

Mutunga claims backlog has reduced from 1m to 400k cases, that judiciary is now collecting 3b from 0.5b and that he has courts all over.

Yes, that certainly looks like failure