The crisis threatens to tear apart the Supreme Court as the country heads to the 2017 polls.
The emails exchange started a few minutes on Friday after a bench of five-judges of the Court of Appeal ruled that Deputy CJ Kalpana Rawal and Justice Philip Tunoi should retire at 70.
The two, however, rushed to the Supreme Court and Judge Njoki Ndung'u granted them orders suspending the Court of Appeal decision.
The Judge, sitting as a single judge, stopped the Judiciary Registrar from recruiting a DCJ until the matter is heard on June 24. CJ is expected to retire on June 16.
The two judges exchanged bitter emails using their personal email addresses with the CJ admonishing Judge Ndung'u for acting unilaterally in a very important matter.
Here is the chronology of events:
On May 27, 2016, at 2:26 PM, Willy Mutunga wrote:
The CA (Court of Appeal) has decided.
I am told there are applications and appeals already filed.
I have instructed Hon Lucy Njora (Supreme Court Deputy Registrar) to place the applications before me for directions.
I will deal with the applications as a single judge.
Dr. Willy Mutunga, D.Jur,SC,EGH
Chief Justice/President, Supreme Court of Kenya
"The poor need Justice; others need the Law." Professor Dani Nabudere
"The rich don't need the law, they've got wealth and power. It's the poor who need the law." Albie Sachs.
"The Supreme Court of Kenya neither has friends nor enemies among Kenyans. All the Court cares for is Justice for and to all Kenyans."
Judge Njoki's reply
On Fri, May 27, 2016 at 3:32 PM, Njoki Ndungu wrote:
I saw your email very late. It would have been better if you had called on phone directly if you had directions for me. I assure you I have followed the provisions of our rules and Act strictly.
As duty Judge for today I already heard 2 certificate of urgency applications by Justices Rawal and Tunoi. I have already disposed of them, given interim orders and given dates for interparties hearing. I think that is in order.
On May 27, 2016, at 3:46 PM, Willy Mutunga wrote:
I counseled against copying the applicants in any mail coming from us!
I thought, given the history of this matter, you would have considered that those of us who are around could be involved in some brief conferencing. Even as a duty judge, isn't there a standing guideline that after the files are given to judges is either the CJ or the DCJ who does the allocation?
I am surprised you suggest I should have called you? Did you think of calling me?!
From: Njoki Ndungu
Date: May 28, 2016 at 8:42:37 AM EAT
To: Willy Mutunga
Cc: Mohammed Ibrahim , jbojwang , swanjala
Subject: Re: The Decision of the CA
With utmost respect CJ, I do not understand your angry tone - which I find inappropriate - to me in this email, for the following reasons:
1. I did not know you were in the country to begin with as your earlier email communication to us indicated you would be out of the country from the 22nd may. (How would I know to call you when you are out of the country? You never pick my calls anyway.)
2. You did not copy any email to ME asking not to copy our colleagues.
3. The first email from you to me arrived in my inbox at 2.31 pm when I had already started listening to the matters, and I was not online at that time. I only saw your email AFTER I had disposed of the applications.
4. Justice Ojwang who was the only other Judge not affected by the matter who was in chambers at the time and we consulted and agreed I should proceed hear the matters.
5. The matters were exparte and took a short time. I communicated to you immediately I saw your email and got your message from The DR.
5. I am not aware that there is anything wrong or untoward with the manner I handled the matters.
6. Did you have a specific outcome in mind? It appears to me, that once again you are having issues with the decisional independence of Judges in your court, particularly myself. This is a subject that has been discussed before. How do you suggest we handle this?
The exchanges emerge after CJ Mutunga on Monday morning directed that the hearing on the retirement age of DCJ Rawal and Justice Philip Tunoi be heard on Thursday, June 2.
Justice Njoki Ndung'u, while suspending the Court of Appeal decision on Friday, initially directed the case to be heard on June 24.
Rawal has dismissed Mutunga's move terming it as "outrightly illegal unlawful directions".