The Supreme Court has said Justice Njoki Ndungu was eligible to hear the petition filed by Deputy Chief Justice Kalpana Rawal.
Addressing the media during the hearing of a case in which Justice Rawal and her counterpart, Philip Tunoi, are challenging their retirement age, Chief Justice Willy Mutunga dismissed media reports that Justice Ndung’u was not intended to hear the case.
“The position of the Supreme Court is that Justice Njoki Ndung’u was indeed the duty judge on May 27,” he said.
The Supreme Court statement was followed by a quick withdrawal by the Judicial Service Commission (JSC) of two paragraphs of an affidavit filed in their petition seeking to overturn orders made by Justice Ndung’u extending the terms of both Justices Rawal and Tunoi.
The JSC, through lawyer Issa Mansur, told a five-judge Bench of that the application had been filed with urgency and there was no time to confirm sections of the affidavit sworn by Chief Registrar Anne Amadi.
Hearing of the case began Monday morning after the Law Society of Kenya (LSK) made a failed attempt to explore mediation between the parties on Friday.
At the same time, the High Court on Monday declined to issue orders stopping the JSC from investigating Justice Ndung’u on allegations of gross misconduct in the delivery of the May 27 ruling.
Former LSK chief executive Apollo Mboya had filed an application seeking to have her investigated on grounds that she failed to follow the laid down court procedures.
Justice Ndungu moved to the High Court, seeking to stop the investigations on grounds that the JSC would not give her a fair trial.
Justice Joseph Onguto ruled Monday that he could not bar JSC from handling the petition.