Njoki Ndungu, SCJ
A judge of the first bench of the Supreme Court under the 2010 Constitution. Her work runs to constitutional interpretation, media law and the two-thirds gender rule — and she writes separate opinions more often than any of her colleagues.
Overview
Njoki Ndungu was sworn in as a Justice of the Supreme Court when the Court was first constituted in August 2011, having sat on the Court of Appeal before that. Earlier still she was a nominated member of the National Assembly, where she moved the Sexual Offences Bill that became the Act of 2006 — a legislative background that shows in how closely she reads the words of a statute.
On the bench she is most often the judge who asks what the Constitution requires in principle, and then whether the statute in front of the Court can be read to meet that requirement. Her judgments on media pluralism and on gender representation are the clearest examples, and both are still cited in the High Court.
She is also the Court's most substantial dissenter: of the 37 separate opinions attributed to her, the best known is her minority judgment in the presidential petition of 2017, where she disagreed with the majority on the standard of proof a petitioner must meet.
Notable judgments
Six decisions from her fifteen years on the bench, each with a brief and a pinpoint to the paragraphs she wrote.
The Court has no appellate jurisdiction over a Small Claims Court decision: Article 163(3)(b)(ii) requires Parliament to prescribe it, and the Small Claims Court Act makes the High Court final instead.
The digital migration deadline stood, but the licensing decisions were set aside and costs awarded against the Commission. The leading judgment on media pluralism and the regulator's duty to act fairly.
Article 81(b) is a directive that must be realised progressively: Parliament was given a deadline to legislate the two-thirds gender rule, and the Court kept the question open rather than closing it.
The Court set the standard of review a court may apply to a constitutional appointment, and the point at which judicial interference in the exercise of a discretion goes too far.
She dissented from the majority's nullification of the presidential election, holding that the irregularities complained of had not been shown to affect the result and that the petition should have been dismissed.
On when the Court will answer a reference at all: the advisory jurisdiction is not an appeal by another name, and the question must arise out of the exercise of a constitutional function.
Dissents and separate opinions
A dissent is indexed against the judge who wrote it and is never counted twice. Where a bench split, the brief shows both positions in full.
The majority nullified the election; the minority held that non-compliance had to be shown to have affected the result, and that the petitioners had not discharged that burden on the evidence filed.
The petition was struck out for want of certification. The minority would have heard it, taking the view that the question of the Court's own jurisdiction is always a matter of general public importance.
Leave to appeal out of time was refused. The minority would have granted an extension, holding that the delay was explained and that the pension question affected 46 claimants.
Topics she reasons on most
Computed from the tagged issues in every judgment she has written, not from the subject matter of the file.
104 judgments. Reading Articles 1–260 — rights, devolution and the separation of powers.
46 judgments. Broadcast licensing, defamation, privacy and the regulator's duty to act fairly.
38 judgments. The two-thirds rule, equal treatment and the progressive realisation of Article 81(b).
29 judgments. Presidential petitions, the standard of proof and the electoral commission's factual findings.
22 judgments. Admissibility, the burden of proof and what a court may do with affidavit evidence.
31 judgments. The first question in every matter — and the one she returns to most often.
Decisions per year
Judgments delivered and dissents written in each year, with the number of times her reasoning in that year has since been cited by another judgment.
| Year | Judgments | Dissents | Citations earned |
|---|---|---|---|
| 2011 | 4 | 0 | 12 |
| 2012 | 9 | 1 | 186 |
| 2013 | 18 | 2 | 402 |
| 2014 | 16 | 1 | 588 |
| 2015 | 14 | 3 | 344 |
| 2016 | 12 | 2 | 296 |
| 2017 | 11 | 4 | 812 |
| 2018 | 13 | 3 | 388 |
| 2019 | 15 | 2 | 341 |
| 2020 | 17 | 3 | 402 |
| 2021 | 14 | 4 | 361 |
| 2022 | 12 | 2 | 288 |
| 2023 | 11 | 3 | 254 |
| 2024 | 13 | 3 | 296 |
| 2025 | 12 | 3 | 318 |
| 2026 | 7 | 1 | 92 |
Read the reasoning beside the record.
Open the brief for any judgment above — bottom line, ratio, orders, and a pinpoint to the paragraph each proposition came from.