The glaring division in the five-member Supreme Court was publicly exposed last evening when it gave a 3-2 split decision disallowing lawyer Nelson Havi’s application to participate in the appeals lodged by Deputy Chief Justice Kalpana Rawal and suspended Supreme Court Judge Philip Tunoi.
Outgoing Chief Justice Willy Mutunga gave the decisive push to rulings by Justices Mohamed Ibrahim and Smoking Wanjala, who declined to allow Havi to represent lawyer Michael Osundwa Sakwa to promote Justice Tunoi’s agenda with the tribunal investigating the sensational Sh200m bribery allegations against him.
However, Justices Njoki Ndung’u and Jackton Ojwang had held that Osundwa was championing public interest in alleged judicial corruption and there was no justification to deny him the watchdog role in the appeals.
Justice Ibrahim said that Justice Tunoi’s interests in the pending appeal before the Supreme Court and the tribunal chaired by veteran lawyer, Sharad Rao were well protected and he did not require any assistance to secure his rights and freedoms. Justice Wanjala dismissed Havi’s assertion that Osundwa’s participation would assist the court.
Justice Mutunga said he had concurred with Justices Ibrahim and Wanjala since the parties opposed to Osundwa’s participation had given persuasive reasons that it was premature, an abuse of the court process, a subversion of public interest and a delaying tactic. Public interest superceded personal interests, he observed.
Havi had explained that the tribunal presided over by Rao had taken a lot of judicial and public resources.
Lawyers Waweru Gatonye and Kioko Kilukumi, representing Justice Rawal and lawyers Pheroze Nowrojee and Kiragu Kimani for Justice Tunoi and the LSK, said they were leaving it to the court to decide the issue. However, civil rights crusader Okiya Omtatah and lawyers Charles Kanjama and Issa Mansour, for the JSC, vigorously opposed Havi’s application.
They argued that Osundwa and the tribunal did not participate in the proceedings before the High Court andCourt of Appeal and they had nothing special to offer to the Supreme Court.
Meanwhile, the Judicial Service Commission (JSC) yesterday confirmed that Supreme Court Judge Njoki Ndung’u was officially on duty when she suspended the controversial 70-year retirement rule for all Judges.
Lawyer Issa Mansour, for the highest judiciary organ, conceded that information contained in his affidavit insinuating that Supreme Court Judge Ibrahim Mohamed was the one on duty was misleading and should be expunged from records.
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