High Court Judge David Onyancha has opted to retire, leaving two of his Supreme Court colleagues to carry on with the case challenging the retirement age for judges appointed before the 2010 Constitution.
In a letter dated January 27, the 73-year-old judge informed Chief Justice Willy Mutunga that he intended to proceed on terminal leave pending his retirement at the end of February, as a storm raged over graft allegations against Supreme Court Judge Philip Tunoi with whom Justice Onyancha had filed a case challenging their retirement at 70.
“I hereby firmly indicate that I will retire as intended at the end of February aforestated whether or not the pending suit has been completed,” he wrote in the letter that was also delivered to the JSC.
Justice Onyancha asked Dr Mutunga to allow him to go on leave ahead of his retirement as he is “unable” to conduct his normal duties.
He added: “I am meanwhile unable to attend to my working station as I will not be able to sit on new or pending cases due to your Lordship’s directive to me to that end.
“Your Lordship may to that end grant or give me some kind of leave pending retirement.”
Deputy Chief Justice Kalpana Rawal is also fighting the Judicial Service Commission’s decision to retire her at 70.
Justice Rawal is appealing against the High Court decision that all judges appointed under the old Constitution had taken a fresh oath of office and must retire at the age of 70 instead of 74.
She argues in her appeal that the High Court made a mistake in applying wrong principals of law in determining the correct retirement ages of judges.
The JSC had, however, objected to her appeal, arguing that the Court of Appeal has no original jurisdiction to hear and interpret the constitutional questions she is raising without any statute giving them the powers.