Mutunga fast tracks Rawal retirement case

Chief Justice Willy Mutunga at a past event. FILE PHOTO | WILLIAM OERI | NATION MEDIA GROUP

What you need to know:

  • Earlier, she had contested orders by the Court of Appeal requiring her and Justice Philip Tunoi to retire, a ruling that was suspended by Supreme Court Judge Njoki Ndung’u.
  • If the two retired upon attaining the retirement age before their successors are appointed, that would leave the third arm of the government without heads and in a quagmire.
  • The CJ is scheduled to vacate office in two weeks and the order retaining Justice Rawal meant that she would act as the head of Judiciary and the president of the Supreme Court pending the appointment of a new CJ.

The succession battle in the Judiciary gained momentum on Monday, after Chief Justice Willy Mutunga waded into the retirement case of his deputy Kalpana Rawal.

Dr Mutunga fast-tracked by 22 days the hearing of an appeal filed at the Supreme Court by Justice Rawal opposing her retirement.

However, she filed a fresh appeal challenging Dr Mutunga’s decision, arguing that he had erred.

Earlier, she had contested orders by the Court of Appeal requiring her and Justice Philip Tunoi to retire, a ruling that was suspended by Supreme Court Judge Njoki Ndung’u.

If the two retired upon attaining the retirement age before their successors are appointed, that would leave the third arm of government without heads and in a quagmire.

The CJ is scheduled to vacate office in two weeks and the order retaining Justice Rawal meant that she would act as the head of Judiciary and the president of the Supreme Court pending the appointment of a new CJ.

Justice Ndung’u directed Judiciary Chief Registrar Anne Amadi not to issue a notice of retirement to Justice Rawal and further directed the Judicial Service Commission (JSC) not to advertise in the media the deputy chief justice's vacancy.

The judge certified as urgent the appeal filed by lawyer Kioko Kilukumi, who is representing Justice Rawal. She had listed it for hearing on June 24, long after the CJ would have left office.

But this was reversed by Dr Mutunga, who invoked his powers and directed that the case be brought forward and be heard by a five-judge bench of the Supreme Court.

Justice Ndung'u's ruling had been criticised by some legal experts, who said it had ill intentions.

Dr Mutunga directed the matter be mentioned before Justice Smokin Wanjala and Justice Njoki Ndung’u on Tuesday for directions.

Those who will hear the two appeals are Justices Mutunga, Mohammed Ibrahim, Jackton Ojwang, Wanjala and Ndung’u.

The determination of Justice Rawal's two appeals may swing either way, since the CJ and Justice Wanjala are members of the JSC, which directed that Justices Rawal and Tunoi retire.

The seven Court of Appeal judges who upheld the December 11, 2015 High Court judgment are GBM Kariuki, Milton Makhandia, William Ouko, Jamila Mohammed, Kathurima M’MInoti, Patrick Kiage and Otieno Odek.

Those said to be eyeing the CJ's seat are Justice Wanjala, Attorney-General Githu Muigai, Justice Isaac Lenaola, Justice Mbogholi Msagha, and appeal judges Paul Kihara Kariuki (president of Court of Appeal) Alnashir Visram, Martha Koome and Agnes Murgor.