, NAIROBI, Kenya, May 30 – Chief Justice Willy Mutunga has fast-tracked the hearing of the appeal filed in the Supreme Court by his Deputy Kalpana Rawal and fellow Supreme Court judge Philip Tunoi challenging their retirement at 70.
Mutunga has directed that the inter-partes hearing which had been scheduled for June 24 be pushed up to Thursday with directions on the hearing to be delivered on Tuesday morning before Justices Smokin Wanjala and Njoki Ndungu.
- Mutunga has directed that an inter-parties hearing will now be held on Thursday and not June 24 as earlier ordered by Justice Njoki Ndung'u, given the public interest in the matter.
- The parties in the case - who include Rawal, Tunoi and the Judicial Service Commission - are first expected to appear before Justices Ndung'u and Smokin Wanjala for further directions on Tuesday morning.
- The CJ has also directed that the case be heard before all the remaining judges of the Supreme Court bench including himself, Justice Ndung'u, Wanjala, Mohammed Ibrahim and Jackton Ojwang' on June 2.
“Granted the urgency under which the hearing of the application was sought, and the public interest in this application, I hereby invoke my administrative powers as the Chief Justice and President of the Supreme Court to fast track the hearing of the application,” he ordered.
He has also directed that the application be heard before all the Supreme Court Judges who are not party to the application; himself, Justices Ndungu, Wanjala, Jackton Ojwang’ and Mohammed Ibrahim.
On Friday Justice Ndungu suspended the judgment delivered by the Court of Appeal on Rawal and Tunoi’s retirement and certified their application as urgent.
The two sought to have the Court of Appeal finding that they should have retired at 70, and not 74 as they contend, stayed pending their lodging of an appeal before the Supreme Court.
The Law Society of Kenya and the Commission on Administrative Justice have however advocated for an out of court process questioning the wisdom of having the Supreme Court preside over a case involving their peers.
It could also be argued that the Chief Justice has already taken a position on the matter by virtue of his role as JSC Chairman.
“A further appeal to the Supreme Court would be inappropriate and riddled with conflicting interests. This is because two of the seven judges of the Supreme Court including the Chief Justice are members of the JSC who took the view that the retirement of judges ought to be at 70; two other judges are the subject of the appeal (Rawal and Tunoi), while the remaining three judges (Ndung’u, Ojwang and Ibrahim) were part of the bench that expressed the opinion that judges ought to serve up to 74 years,” Ombudsman Otiende Amollo stated in an advisory opinion.