, NAIROBI, Kenya, May 27 – The Supreme Court has suspended an order requiring Justices Kalpana Rawal and Philip Tunoi to retire since they’ve attained the age of 70, in accordance with the new Constitution.
The stay order was granted by duty judge Njoki Ndung’u pending hearing of an application challenging a decision of the Appeal Court to send them on retirement.
The two rushed to court on Friday afternoon moments after the Court of Appeal ruled they should retire.
The order says their positions cannot be advertised pending outcome of the case lodged in the highest court in the land.
Tunoi is on suspension following the tribunal formed to investigate claims he got a Sh200 million bribe from Nairobi Governor Evans Kidero to rule in his favour in a poll petition.
The tribunal was in limbo following the earlier order but can now resume its sittings on Tuesday as planned since Tunoi has not been retired. The order would have rendered the tribunal redundant.
Earlier in the day, the Appeal Court ruled that the two were required to retire since they got into their offices under the new Constitution even though they were still judges before its promulgation.
“The High Court did not err in holding that the Constitution did not reserve and save the retirement age of judges prescribed by Section 62(1) of the former Constitution and that with effect from the effective date, the retirement age of all judges is 70 years. For these reasons, the appeal must fail,” the court ruled.
While dismissing the appeal of the two, the five judge-bench stated the two assumed office as Supreme Court judges under the new Constitution.
“Without subscribing to the oath of office, the vetted judges could not assume their offices. By the oath of office, every State officer including a judge signals personal commitment to defend the Constitution and to faithfully exercise and discharge the duties and functions of his or her office.”
In the ruling, the judges further stated that the retirement age of judges can only be set by the Constitution and that super ceded any other proclamation.
Rawal had argued that the Judicial Service Commission’s move to retire her at age 70 was in contravention of Section 31 (1) of the Sixth Schedule of the Constitution.
She had also refuted the Chief Registrar of the Judiciary Atieno Amadi’s assertions that she is on terminal leave and challenged the Judicial Service Commission to prove that she made a commitment to retire at 70 when she interviewed for the position of Deputy Chief Justice as they had alleged.