It’s battle royal as Tunoi, Rawal oppose retirement

The stage is set for a gladiatorial showdown on Thursday at the Supreme Court which will determine the leadership and direction of the Judiciary.

At the centre is a case brought by Deputy Justice Kalpana Rawal and Supreme Court Judge Philip Tunoi challenging a decision by the Court of Appeal that all judges must retire at the age of 70 in accordance with the constitution. But other cases have now grown around it.

Yesterday, activist Okiya Omtata sued the entire five-judge bench at the Supreme Court asking that they disqualify themselves from hearing the case since they have already publicly take a position on the issue.

He wants the decision of the Court of Appeal be allowed to stand.

Justice Tunoi, has challenged the decision by his boss, Chief Justice Willy Mutunga, to vary the orders given last Friday by Supreme Court Judge Njoki Ndung’u.

Lady Justice Ndung’u had stopped the implementation of Court of Appeal judgment and directed the case be heard on June 24. Justice Mutunga reversed the hearing date to tomorrow.

The Law Society of Kenya (LSK), which has never participated in the case since its commencement in the High Court last year, is also asking to join the case as a friend of the court.

Yesterday, Supreme Court Judges Smokin Wanjala and Ndung’u, directed that all these applications be heard by five judges tomorrow where further directions will be given.

“We hereby direct that these applications shall be heard by a five judge bench of this court on June 2, and it is then that a decision will be made on the appropriate orders to be issued and the way forward,” said judges Wanjala and Ndung’u.

According to activist Omtatah, there is no way the five Supreme Court judges can impartially determine the appeals filed by Lady Justice Rawal, and Justice Tunoi, because they had earlier expressed their opinions regarding the retirement age.

He argues that Justices Mutunga and Wanjala, being members of the Judicial Service Commission which has declared that the judges must retire upon attaining the age of 70 years, cannot preside in their own cause.

Lady Justice Rawal and Justice Tunoi and are litigants who have challenged the decision to retire them at the age of 70, hence, they too cannot preside in their own cause.

Meanwhile, Justice Mohamed Ibrahim, Justice Jackton Ojwang, and Justice Ndung’u were part of the bench which, expressed itself in support of the position taken by Supreme Court Judges Rawal and Tunoi that the retirement age of judges appointed under the repealed Constitution is 74 years.

The position was taken in an election petition filed by Kanu secretary-general Nick Salat who was challenging the election of Bomet senator, Professor Wilfred Lesan.  Mr Salat, who had lost the Bomet senatorial seat, had questioned the composition of the bench, arguing some judges had attained the 70 years retirement age.

“The learned judges have an obligation to avoid participating in this case where they have taken sides and the grounds for their disqualification are undeniably clear,” Mr Omtatah.

He said that the issue he was raising, “is outright disqualification and not voluntary recusal of the Supreme Court judges”.

He explained that the participation of all the five judges will go against the constitutional requirement of fair hearing to all the parties who are in the retirement age case.

Further, that the conservatory orders issued by Justice Ndung’u on Friday, have created a self-inflicting crisis in the judiciary which can only be avoided by allowing the Court of Appeal decision to stand, since the seven Appellate court judges were fully competent to decide constitutional issues.

The LSK said it wants to be enjoined because the proceedings are of immense public interest which it is mandated to protect.

The request was, however, contested by Justice Rawal through lawyer Kioko Kilukumi who said LSK has not followed the law in making the request.

“LSK has always been in the country when the matter was filled in the High Court, and later contested in the Court of Appeal but they never sought to be enjoined. What has changed that they have suddenly developed interest in the matter?” lawyer Kilukumi.

Mr Kilukumi said he wants the Supreme Court judges to first hear his application where he has challenged the directions issued by the Chief Justice on Monday which had the effect of varying Lady Justice Njoki’s.

Dr Mutunga had on Monday said that given the urgency of his deputy’s application, and the public interest that the case had generated, he was persuaded to invoke his administrative powers as the Chief Justice and President of the Supreme Court, to fast track the hearing of the application.

He directed the Registrar of the Supreme Court to inform the parties in the case to appear for the hearing of the application before a five judge bench of the Supreme Court on Thursday.

He also directed the Registrar to serve the parties with notices to appear for directions on the hearing yesterday Judges Smokin Wanjala and Ndung’u.

However, according to lawyer Kilukumi, the directives by the Chief Justice were illegal as Dr Mutunga had described his decision to be “administrative power as the Chief Justice and President of the Supreme Court,” without quoting the chapter and the verse conferring the chief justice with any such powers.

“The two judge bench is improperly empanelled in contravention of the Supreme Court Act, which sets out the purpose and function of a two judge bench,” Mr Kilukumi argued.

In addition, that the Chief Justice has no legal power and authority under the Supreme Court Act to single-handedly vary an order issued by any judge of the Supreme Court. More so, that the Chief Justice is not at liberty to interfere with the decisional independence of any judge of the Supreme Court.

“Honourable Chief Justice has acted contrary to the constitution in interfering with the independence of the judges of the Supreme Court. Dr Mutunga’s interference is calculated and designed to undermine and completely erode Justice Rawal’s constitutional right to a fair hearing in violation of Article 50 of the constitution,” Mr Kilukumi said.