Judge alleges plot to block appeal

Suspended Supreme Court Judge Philip Tunoi follows proceedings during a hearing before the tribunal investigating his conduct, at Anniversary Towers in Nairobi on April 27, 2016. His lawyer, Mr Nowrojee, said the positions taken by JSC had not been subjected to a test before the court and could not therefore be upheld without giving judges Tunoi and Rawal an opportunity to be heard. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • Mr Nowrojee said the positions taken by JSC had not been subjected to a test before the court and could not therefore be upheld without giving judges Tunoi and Rawal an opportunity to be heard.
  • He explained that there was no right to public office or public jobs, adding that if that were to be the position, the country would be in chaos since other citizens would demand the same treatment.

Embattled Supreme Court judge Philip Tunoi has accused his employer of trying to block him and Deputy Chief Justice Kalpana Rawal from challenging the Court of Appeal verdict on the judges’ retirement age.

His lawyer Pheroze Nowrojee on Thursday told Supreme Court judges led by Chief Justice Willy Mutunga that the Judicial Service Commission (JSC) had taken a stand that the Bench would be biased and suggested to the court to uphold the Appellate ruling that judges be retired at age 70.

Mr Nowrojee said the positions taken by JSC had not been subjected to a test before the court and could not therefore be upheld without giving judges Tunoi and Rawal an opportunity to be heard.

“It has not yet been established that this Bench will be biased and so should not hear the appeals. These are issues which can only be determined during hearing,” Mr Nowrojee said, adding that upholding the Court of Appeal verdict should not be automatic.

The allegations by JSC that it is in the public interest that judges retire at 70 could not be upheld without basis since the two judges were of a different opinion, he said.

“This position by JSC is self-serving as it is not supported by the Constitution or any legal basis,” Mr Nowrojee said, and urged the court to reject the position taken by JSC and activist Okiya Omtatah, who have both urged the five-judge Bench to disqualify itself and allow the appellate court’s decision to stand.

Neither Justice Rawal nor Justice Tunoi had exhausted the right to appeal, since they still had a chance to appeal to the Supreme Court, he said.

Mr Kiragu Kimani, for Justice Tunoi, told the CJ, who is also the president of the Supreme Court, that he would be going against his oath of office to uphold the Constitution and dispense justice without being biased, if he declined the request by the two judges to be allowed to appeal.

“A lot of energy has been spent to try and deny the two judges access to justice. The CJ swore to uphold the rule of law and declining to hear the judges will be against his oath of office,” Mr Kiragu said.

Mr Charles Kanjama for JSC, however, said having exhausted the Court of Appeal, challenging the decision in the Supreme Court was not an absolute right, while Mr Omtatah said a court which is in conflict would still deny the parties access to justice even if they were heard.

He explained that there was no right to public office or public jobs, adding that if that were to be the position, the country would be in chaos since other citizens would demand the same treatment. The hearing continues today.