, NAIROBI, Kenya, Jun 14 – The Supreme Court on Tuesday confirmed the May ruling of the Appeal Court which ruled that Deputy Chief Justice Kalpana Rawal and Supreme Court Judge Philip Tunoi should retire at the age of 70.
Chief Justice Dr Willy Mutunga said the ex-parte order issued by Justice Njoki Ndungu to the two on May 27 stood vacated.
“The decision of the Court of Appeal stands but I will not say it’s final. The applicants have a right to appeal to a Supreme Court differently constituted,” he directed.
The Appeal Court decision for the two to retire at 70 was vacated on the same day by Justice Ndungu.
According to the CJ, the Supreme Court had the jurisdiction to hear activist Okiya Omtatah’s application challenging their jurisdiction to her Rawal and Tunoi’s appeal, on the basis of conflict of interest.
Supreme Court Judges Mohammed Ibrahim and Smokin Wanjala disqualified themselves from hearing Omtatah’s application seeking to have the bench disqualify itself.
Ibrahim, who was the first to issue his ruling, recused himself over what he termed as “conflict of interest and the oath of office he took when he was sworn in as a judge.”
“It is my solemn belief that the right thing for me to do, which I hereby do is for me to invoke the oath of office. As a result and with a heavy heart not only am I disqualified by conflict of interest in this matter but I am also under duty to recuse myself from sitting in any proceedings in this matter,” Ibrahim stated.
Wanjala while disqualifying himself upheld the decision of the Appeals Chamber to have Tunoi and Rawal retire at 70.
However, he said he would be ready to hear Omtatah’s application before a properly constituted Supreme Court bench.
“I hereby allow the application of Omtatah only to the extent that I should recuse myself and the judgment of the Court of Appeal should stand until a competent bench of this court is constituted to hear the same,” he ruled.
Justice Jackton Ojwang on the other hand differed with Ibrahim saying Omtatah’s preliminary objections were disallowed and ruled that Rawal’s application challenging her retirement should be heard as the Constitution gave her the right to do so.
In his ruling, he found that the Chief Justice had no powers to vacate the June 24 hearing date set by Justice Ndungu.