, NAIROBI, Kenya, Mar 11 – Justices Asike Makhandia and G.B.M Kariuki will remain on the seven judge bench that will hear Supreme Court Justices Kalpana Rawal and Philip Tunoi’s appeals against retirement at 70 after their applications for their recusal were dismissed.
Justice Patrick Kiage, delivering the ruling, said they had failed to reasonably demonstrate any bias. “The present application is a far cry from what the law requires to be established to arrive at a finding of the existence of the possibility of bias. It is our finding that the application lacks merit as there is no evidence that the presiding judge’s integrity or impartiality might be reasonably questioned,” Kiage said in reference to Kariuki.
Tunoi wanted Kariuki to recuse himself because he was part of a bench that found him guilty of contempt of court 22 years ago when he was a member of the bar.
“In the year 1994 I was part of the bench of the Court of Appeal that found GBM Kariuki, then in private practice, guilty of contempt of court. A finding of guilt and contempt of court together with a substantial monetary fine is a major dent on one’s character. I am apprehensive, on reasonable grounds, that the presiding judge, due to the matters afore-deponed will not be impartial,” he submitted.
Tunoi’s lawyer Pheroze Nowrojee said Kariuki’s admitted recollection of the case during preliminary proceedings was proof of their case.
The Court of Appeal however found differently: “It was not shown by Nowrojee that ability to remember well is evidence of bitterness. Nothing turns on it. Not least because vengeance and vindictiveness are not shown to be either the cause for good memory nor is recollection of such experience or events in life shown to manifest itself in a desire to retaliate.”
Both Tunoi and Rawal had sought to have Makhandia recuse himself given he and Attorney General Githu Muigai frequent the Karen Country Club where Rawal swore, according to an unnamed source, they had plotted to have Tunoi’s and by extension her appeal thrown out.
But given Rawal had failed to reveal the identity of her source, “so their credibility can be gauged and assessed,” and given she alleged that Makhandia and the Attorney General did their plotting prior to the constitution of the seven judge bench that will hear their appeals against retirement at 70, her claims were dismissed, “as Justice Makhandia had nothing to do with the case at that point.”
Their appeals will be heard on April 6.
Rawal and Tunoi want the Court of Appeal to overturn a five judge High Court bench finding that they should have retired at 70 as per the Constitution and not at 74 which they contend was the retirement age when they were appointed judges, prior to its promulgation.