Judging against the grain: Justice Njoki Ndung’u’s jurisprudence of dissent

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By Kwamchetsi Makokha

Barring a miracle, it seemed that Justus Kariuki Mate, the Speaker of the County Assembly of Embu, was going to start October of 2014 in jail.

A three-judge High Court bench in Kerugoya had ruled on April 16, 2014 that Mate and the Clerk to the Embu County Assembly, Jim Kauma, were in contempt of court and summoned them for sentencing. Court of Appeal judges Alnashir Visram, Martha Koome and Otieno Odek sitting in Nyeri on September 30, 2014 upheld that decision and ordered the pair to present themselves at Kerugoya on October 6, 2014 for sentencing.

The following day, their lawyers were in the Supreme Court under a certificate of urgency and were heard by Justice Njoki Ndung’u. As duty judge, she ruled that the contempt matter went to the heart of the interpretation of the Constitution about the principle of separation of powers. She placed the Court of Appeal orders in abeyance pending a full hearing that would involve all parties.

Ultimately, Justice Ndung’u, sitting with Justice Philip Tunoi, decided that the order would rest in abeyance, and the status quo would be maintained, pending the determination of the main appeal.

Mate and Kauma had defied High Court Judge Cecilia Githua’s orders restraining the County Assembly of Embu from impeaching Governor Martin Wambora without first affording him an opportunity to defend himself. The order was served on the office of Speaker, and later published in the Daily Nation and Standard newspapers on the January 26 and 27, 2014.
Wambora was impeached on January 28, 2014, and he then applied to have Mate and Kauma jailed for six months for contempt of court. On April 16, 2014, Justices Hedwig Ong’udi, Cecilia Githua and Boaz Olao found that the applicants were aware of the court orders of January 23, 2014 and had deliberately disobeyed them.

Wambora’s main appeal never reached the Supreme Court, his impeachment having been upended at the Court of Appeal, but the contempt of court case had ended long before it.
Privately, the other judges in the Supreme Court were astounded that a finding that converted contempt of court proceedings into a matter for constitutional interpretation could be made with finality without a full five-judge bench. It would not be the first time Justice Njoki Suzanna Ndung’u would be judging against the grain, and was certainly not her last.

Long before Justice Ndung’u captured prime Kenyan television time for four hours reading from her 440-page dissenting opinion in the 2017 presidential election petition in September, she had studiously cultivated a reputation for rebellion within the Supreme Court.

At 46 at the time of her appointment to the apex court in 2011, she was considered the junior member of a distinguished bench of scholars and jurists, but it would not be long before she began to cultivate her own reputation.

Her latest dissent was a little more than the expression of a different opinion – it turned into a frontal attack on the majority decision and a crowning moment for her insurrection.

Chief Justice David Maraga…

…to read more please purchase the Nairobi Law Monthly Magazine October 2017 Issue at only Kshs 350

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