, NAIROBI, Kenya, May 27 – Justices Phillip Tunoi and David Onyancha moved to the High Court on Tuesday in a bid to have the retirement age of judges who were on the bench prior to the promulgation of the Constitution moved from 70 to 74.
The two who have been required by the Judicial Service Commission (JSC) to vacate their offices by June 3 given they are over 70 years of age argued that there was confusion over the matter.
They accused the JSC of issuing conflicting directives over the retirement ages of judges by failing to nullify a circular dated May 24, 2011 pegging the retirement age at 74 before revising it to 70 on March 27, 2014.
“No effort to annul the first circular was made hence the two are contradictory and impossible to reconcile. It is due to such conflicting decisions that it is now necessary for the court to adjudicate which decision is in accordance with the law,” they argued through their lawyer Fred Ngatia.
“No conceivable prejudice shall be caused to the JSC and the Judiciary since the fundamental issue to be litigated arose following conflicting communications made by the JSC,” they argued.
Should the court fail to rule in their favour, they contended that their legitimate expectations would have been violated. “The retirement age should be 74 years because there is imminent loss of office and terminal benefits,” they argued.
And when determining the retirement benefits of Judges, Tunoi and Onyancha also want the court to direct the JSC to factor in their seniority and length of service.
The two Judges said they were forced to move to court after the JSC failed to respond to a letter they wrote to it raising the issues above.
The matter is due to be heard on Wednesday.