Age row throws court into crisis

Friday October 09 2015

More than 20 cases are held up in the Supreme Court after three judges withdrew their services in protest against a decision to send home colleagues who have attained retirement age of 70 years.

Supreme Court Judges Njoki Ndung’u, Jackton Ojwang and Mohammed Ibrahim had written to the Judicial Service Commission saying the decision to stop colleagues from doing their work because they have reached 70 was illegitimate interference with the work of the court.

Consequently, a lawyer has now petitioned the commission to sack the judges for “gross misconduct”.

Law Society of Kenya chief executive Apollo Mboya on Friday said Justices Ibrahim, Ojwang and Ndung’u had breached their oath of office.

Mr Mboya presented a list of 21 cases to the commission that were taken off the list, signalling a major crisis as no new dates have been set for hearing, mention or conclusion.

One was filed by speakers of the 47 county assemblies seeking an advisory opinion on procedures for the removal of speakers and whether county assemblies members enjoy immunity.



The hearing had been set for October 8, 2015 but the case was taken off the list and a new date is yet to be allocated.

Another case is that of Chris Bichage versus Richard Tong’i, an appeal from a petition that challenged the election of Nyaribari Chache MP.

The case of former chief registrar of the Judiciary Gladys Shollei challenging her dismissal is also affected by the three judges’ go-slow.

“In their letter dated September 24, 2015, the judges who authored and signed it withdrew their services to the people of Kenya with immediate effect,” said Mr Mboya.

He said the remaining three judges of the Supreme Court — Chief Justice Willy Mutunga, Deputy Chief Justice Kaplana Rawal and Dr Smokin Wanjala — cannot constitute a bench for its proceedings.

Justice Philip Tunoi is on leave following the notice by the JSC that all judges who have reached 70 keep away from court proceedings.

Justice Rawal, who has challenged a notice to retire in court, is expected to leave office on January 16, 2016 when she turns 70 years.

“The action by the three judges has not only held litigants hostage but led to delayed justice contrary to the Constitution.

“The three pronounced themselves on a question of law on a matter pending determination by the court, a move that was calculated to ensure that should the matter reach the Supreme Court, they shall not constitute a bench for determination,” Mr Mboya said.


The dispute between the judiciary commission and the Supreme Court looks set to worsen after a meeting held last week failed to yield a solution.

The meeting was convened by Chief Justice Mutunga as the agitation of judges disgruntled by commission’s pressure on their colleagues to retire, sought to find a solution after close to two months of near court paralysis.

But disagreement over the order in which the judges would release their pending rulings and judgments in over 10 cases prompted Dr Mutunga, also the president of the court, to end the meeting, according to a senior official privy to the discussions.

Justice Tunoi’s suspension and subsequent retirement is at the centre of the dispute that has been playing out in the courts for months and recently spilled over to the media.

The CJ was apparently uncomfortable with approving a ruling with Justice Tunoi’s signature on it as that would have amounted to recognising him as a bona fide member of the bench.

Justice Tunoi, 71, has challenged his retirement in court, saying he was hired under the old Constitution when judges retired at 74 and not 70 under the August 27, 2010 Constitution.