Supreme Court Judge Lady Justice Njoki Ndung’u dissented with views of judges in the Ferdinand Waititu election petition against Evans Kidero.
“The title may be read concurring but the substance is dissenting,” law blogger Moses Chelanga wrote of Ndung’u’s 43-page opinion. Senior Counsel Ahmednasir Abdullahi later described it “a withering rebuke of the decision of the majority”. Slightly longer than the combined judgment of her six colleagues, Justice Ndung’u struck mercilessly into the heart of their judgment disregarding their obsession with timelines at the expense of overall ends of justice.
“This set of occurrences raises some red flags: first, the fact that even within the strict requirements of the post-constitutional electoral dispute settlement scheme, the intended appellant had to prompt the Court for the certified copy of the judgment and the typed proceedings.”
“Secondly, that the typed proceedings were to be issued at the convenience of the registry with no specific reference to a time frame,” she said.
On the contrary, the judge said, judicial process ought to have been aligned to facilitate the lodging of the appeal within the mandated timelines and a petitioner should not bear the burden of the court’s bureaucracy.
According to the judge, the strictness of timely settlement of electoral disputes required by the Constitution and by Statute was severely compromised by lethargy in judicial procedure in the case.
“Registry ineptitude and procrastination is a colossal impediment to justice, an aspect which ought to have been cured by the reforms in the Judiciary following the adoption of the Constitution of Kenya, 2010,” she said. She was categorical that such lethargy should not be tolerated by the Supreme Court. “The country’s highest court cannot be so powerless as to stand by where a litigant is disadvantaged by factors outside his control,” she said.
Ndung’u drew parallels to Kenya’s history where “courts were part of the problems impeding justice”. She cited the case of former opposition leader Mwai Kibaki, who was unable to personally serve former President Moi.
She also cited instances of files mysteriously disappearing and reappearing after deadlines had passed.
In a sharp but veiled indictment of her colleagues, she further posed: “If the latter is the case, then should a judicial officer down his or her tools mechanically, citing procedural technicality in the face of administrative unfairness?”
She answered herself: “I respectfully think not. The entire judicial machinery including its administrative arm ought to respond to the impetus of judicial authority, which, aside from emanating from the people of Kenya, imposes certain guiding principles.
The judge said a certificate of delay issued by the court was enough in the circumstances to allow the appeal. She also agreed with the Court of Appeal that the certificate might account for Waititu’s “calm and eventual decision to lodge the appeal”.
She vouched for Waititu’s “unlimited right to fair trial”.
“I am of the opinion that it was proper for the Court of Appeal to admit and hear the appeal in the circumstances. It is clear that the Court of Appeal was in furtherance of the constitutional imperatives of access to justice and fair hearing when it opened its doors to the 1st respondent.”
Despite the dissenting views, Ndung’u turned around to agree with her colleagues and with very little jusitification.
“However, in light of the decision taken by the majority, this proposal for the Court to remit the matter to itself, cannot be effected. As the case stands, no evidence has been adduced to warrant the nullification. I am therefore in agreement with the final orders in the majority decision.”
The final orders of the majority annulled the court of appeal decision, reinstated the High Court decision, reaffirmed Kidero as duly elected governor.
