[2017] KEHC 8342 (KLR)

Mboya & another v Attorney General & 2 others; Rawal & 5 others (Interested Parties) (Petition 204 & 218 of 2016 (Consolidated)) [2017] KEHC 8342 (KLR) (Constitutional and Human Rights) (17 November 2017) (Directions)

Apollo Mboya & another v Attorney General & another [2017] eKLR

Neutral citation: [2017] KEHC 8342 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 204 & 218 of 2016 (Consolidated)

EC Mwita, J

November 17, 2017

Between

Apollo Mboya

Petitioner

and

Attorney General

1st Respondent

Judicial Service Commission

2nd Respondent

and

Kalpana Rawal

Interested Party

Philip Tunoi

Interested Party

Mohammed Ibrahim

Interested Party

Jackton B Ojwang

Interested Party

Njoki Susanna Ndung’u

Interested Party

Apollo Mboya

Interested Party

As consolidated with

Petition 218 of 2016

Between

Njoki S. Ndung’u

Petitioner

and

Judicial Service Commission

Respondent

and

Apollo Mboya

Interested Party

Directions

1. By Notice dated 19th September 2017 and filed in Court on 20th September 2017, the 1st respondent’s advocates intimated their intention to cross examine Hon. Lady Justice Njoki Ndung’u, the petitioner in petition No 204 of 2016 on limited paragraphs of her petition. The paragraphs of concern to the respondent according to the notice are:-i.Paragraph 18 of the petition on some alleged discussion by Judges of the Supreme Court, on 22nd September 2015,ii.Paragraphs 19 and 20 of the petition regarding a letter dated 24th September 2015 and paragraph 20 regarding minutes of a meeting by Supreme Court judges held on 6th October 2016.

2. When the petition came up for directions on 9th October 2017, Mr. Kanjama intimated to the Court of his wish to cross examine the petitioner as intimated in their notice referred to above. According to learned counsel, the intended cross examination would enable his client seek clarification of facts contained in those paragraphs thus represent his clients’ interests in a better way. To justify this request, Mr. Kanjama stated that they had sought to expunge certain documents from the record which form the basis of the impugned paragraphs of the petition but this was disallowed, with the Court taking the view that the respondent could pursue the issue and seek to cross examine the petitioner during the hearing of the petition itself and that is why he had filed the notice.

3. Mr. Musangi, Learned Counsel for the petitioner in petition No. 204 of 2016, opposed the request for cross examination contending that it was not necessary to this petition terming it a diversionary tactic. He therefore objected to the request. Miss Ameyo on her part did not did not say anything about the request, while Mr. Mboya did not oppose Mr. Kanjama’s request.

4. What is before Court is a petition and according to Part 111 rule 20 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules), a petition may be disposed of by way of affidavits, written submissions or oral evidence. In the present petition, the petitioner made certain averments in paragraphs 18, 19 and 20 which JSC seeks to cross examine the petitioner on.

5. The paragraphs of concern relate to issues of fact and for that reason, the petitioner wants the Court to take those facts into consideration when making a determination. Mr. Musangi has taken a different view stating that cross examination of his client is not necessary since the issues raised in the petition is about the JSC’s decision in the performance of its administrative capacity.

6. I have looked at the petition and the paragraphs referred to in the notice to seeking to cross examine the petitioner. They relate to issues that are said to have taken place in the Supreme Court deliberations. The petitioner wants the Court to take these averments into account when making a determination of her petition.

7. I have also noted that it is true that Mr. Kanjama sought to have the minutes referred to in those paragraphs expunged from the record, but Mr. Musangi resisted this attempt and told the Court (Onguto J) that the minutes which are mentioned in the concerned paragraphs are relevant to the proceedings herein as they give a clear background of the facts which led to the petitioner’s ultimate condemnation. To him, the evidence contained in those minutes is relevant to the petition before Court. Indeed the Court (Onguto J) did take the view that the minutes are relevant and that it was not proper to start trimming evidence sought to be relied on by the petitioner when such evidence has some nexus to her claim. In the ruling of 7th December 2016, the Court declined to expunge the minutes but indicated that counsel for the petitioner had intimated willingness to offer the petitioner for cross examination by JSC‘s counsel during the hearing.

8. Having given due consideration to the notice seeking to have the petitioner present for cross examination, supporting sentiments and the objections there to, and taking into account the fact that the paragraphs under focus refer to some contentious documents and goings on which the petitioner says show the factual basis of the decision that was taken against her by JSC. Further, taking into account rule 20(3) of The Constitution of Kenya (protection of Rights and fundamental freedoms) practice and procedure rules, 2013 that give the Court discretion to order that a petition be heard partly by oral evidence, and in order to do justice in the matter, it is proper to allow the request for cross examination on the limited paragraphs of the petition.

9. Mr. Musangi did not request to cross examine the JSC’s representative. He however stated that should Mr. Kanjama’s request be allowed, he should also be given an opportunity. He did not tell the court his area of concern which he should have done to enable the court determine the suitability of this request. I say so because despite the fact that all parties have exchanged pleadings Mr. Musangi did not point out which document he wanted to cross examine on. Until a basis is laid the court is usually unable to know what the intended cross examination is intended to achieve.

10. However looking at this matter, and in order to allow parties have their day in court, I will allow Mr. Musangi’s request but limit any cross examination to paragraphs 18, 19 and 20 of the petition which are in contention.

11. Consequently, both counsels’ request to cross examine the witnesses is allowed to the limited extent stated above and counsel for the parties shall have them available for cross examination when required.

DATED AT NAIROBI THIS 17TH DAY OF NOVEMBER 2017E C MWITAJUDGE