Justice Tunoi accused of delaying retirement case

Embattled Supreme Court Judge Philip Tunoi returns to the appellate court Monday to argue his application seeking the removal of a judge from hearing his appeal even as the Judicial Service Commission (JSC) threatens action, which could cost the judge his job.

Justice Tunoi wants Court of Appeal Judge GBM Kariuki stopped from hearing his appeal against a High Court decision that all judges must retire at 70.

He says he fears the judge may not be fair to him because he had in 1994 found Justice Kariuki, then a lawyer, guilty of contempt of court and fined him Sh500,000.

The JSC, through lawyers Paul Muite and Issa Mansur, however, said Justice Tunoi is engaging in sideshows to delay the hearing of his case.

They said they would seek instructions from the JSC on whether to withdraw consent earlier made that the judge should not be retired until his case is concluded.

Justice Tunoi’s request to formerly file an application to challenge the participation of Justice Kariuki in the case was allowed last Friday.

The judges in the appeal are justices Kariuki, Patrick Omwenga Kiage, William Ouko, James Otieno Odek, Jamila Mohammed, Milton Mahandia and Kathurima M'Inoti.

“We are inclined to allow the filing of an application seeking the removal of … Justice Kariuki because we want the court to appear to be fair and passionate in dealing with the matter before it. The request for adjournment to enable the filing of the said application is therefore allowed,” ruled the judges on Friday.

INFLUENCE

Lawyers Muite and Mansur had told the court that the application was without basis because Justice Tunoi had since January been aware that Justice Kariuki was among the bench of judges to hear his case and therefore the request to remove a judge should have been been made early.

Mr Muite argued that there was an attempt to delay the matter from being heard and concluded expeditiously: “We are concerned with the manner in which … Justice Tunoi has been conducted himself even in the High Court. He has been filing one application after another.”

He said the issue in question took place 22 years ago and would not influence the case.

“It is also our view that the case is being heard by seven Court of Appeal judges and it is highly unlikely that one judge can influence the thinking of the other six judges,” said Mr Muite.

Lawyer Mansur said given that Justice Tunoi’s request had been allowed, they would seek instructions from the JSC on whether to withdraw the consent that had been reached that Justice Tunoi should not be removed from office, until his case is heard and determined.

Should the undertaking be withdrawn, the JSC will be free to retire Justice Tunoi and commence the process of replacing him.