Judges fault Chief Justice Willy Mutunga over their retirement

What you need to know:

His instruction, setting a timeline for their case, was unconstitutional, two judges say.
Judiciary boss gave order last week.

Two judges have taken on Chief Justice Willy Mutunga for giving directions on how their suit challenging retirement age for judges should be determined.

Supreme Court judge Justice Philip Tunoi and Justice David Onyancha of the High Court accused Dr Mutunga of contravening the Constitution by directing five judges on how and when they should deliver a judgment in the retirement age dispute.

Through lawyer Fred Ngatia, the two judges argued that the CJ does not have powers to give directions to judges apart from constituting a bench of at least three judges in a case that raises weighty constitutional questions.

“The Constitution provides that judges shall be subject only to the Constitution and the law, and shall not be subject to control or direction of any person or authority,” said Mr Ngatia.

He argued that issues touching on management and timeline of court cases were a preserve of presiding judges.

BOWED OUT

Dr Mutunga last week appointed judges Richard Mwongo, Luka Kimaru, Christine Meoli, Hedwig Ongúdi and Charles Kariuki to handle the dispute and directed them to hear it on consecutive dates not later than March 26, and the judgment delivered on or before April 30.

Dr Mutunga also directed that judges Tunoi and Onyancha’s case be consolidated with another one by Justice Leonard Njagi and be heard by the same bench.

The bench was however rocked by disqualification on its first sitting on Wednesday, after Justice Kimaru bowed out saying he might be seen to be biased.

Mr Ngatia submitted that the judges will be proceeding in an unlawful manner if they go by the CJ’s order and that his action has created the impression that he is interfering with the two judges’ rights to fair trial.

At the centre of the dispute are two conflicting circulars issued by the Judicial Service Commission, in which it said all judges appointed under the old Constitution would retire at 74.

But commission later issued another circular in which it resolved to retire all judges at 70 as per the new Constitution, and issued retirement notices to Justice Tunoi and Justice Onyancha.

The two judges argued that the decision was unconstitutional and illegal since the judges were subject to the transitional clauses of the new Constitution which allows them to be in office until they are 74.

The hearing resumes on Friday.