Rawal: Let CJ retire, I can preside over my own appeal

June 7, 2016 5:10 pm
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Through lawyer Kioko Kilukumi, Rawal on Tuesday argued - before her peers on the Supreme Court - that there needn’t be a crisis when Mutunga retires on June 16/FILE
Through lawyer Kioko Kilukumi, Rawal on Tuesday argued – before her peers on the Supreme Court – that there needn’t be a crisis when Mutunga retires on June 16/FILE

, NAIROBI, Kenya, Jun 7 – Deputy Chief Justice Kalpana Rawal says the impending retirement of Chief Justice Willy Mutunga was no justifiable reason for him to vary the orders issued by Justice Njoki Ndungu setting the hearing date for her notice of appeal for June 24.

Through lawyer Kioko Kilukumi, Rawal on Tuesday argued – before her peers on the Supreme Court – that there needn’t be a crisis when Mutunga retires on June 16 as fellow Supreme Court judge Ndungu on May 27 directed that Rawal “will continue to discharge her Constitutional judicial and administrative duties” pending the inter-partes hearing of her application for a stay of the Court of Appeal adjudgment that she should have retired on January 16 when she turned 70 and not at 74 as she contends.

An inter-partes hearing which she argues she can preside over, despite being the applicant, on account of the precedent set by Chief Justice Willy Mutunga and Justice Smokin Wanjala who have been seized of the matter so far and who she argues are also parties to the case on account of being members of the Judicial Service Commission – the named respondents on her application.

Overview
  • Through lawyer Kioko Kilukumi, Rawal on Tuesday argued - before her peers on the Supreme Court - that there needn’t be a crisis when Mutunga retires on June 16 as fellow Supreme Court judge Ndungu on May 27 directed that Rawal “will continue to discharge her Constitutional judicial and administrative duties” pending the inter-partes hearing of her application for a stay of the Court of Appeal adjudgment that she should have retired on January 16 when she turned 70 and not at 74 as she contends.
  • An inter-partes hearing which she argues she can preside over, despite being the applicant, on account of the precedent set by Chief Justice Willy Mutunga and Justice Smokin Wanjala who have been seized of the matter so far and who she argues are also parties to the case on account of being members of the Judicial Service Commission - the named respondents on her application.
  • Rawal therefore wants her peers on the Supreme Court bench, save for Philip Tunoi who stands suspended, to rule that the Chief Justice acted illegally when he varied Justice Ndungu’s order that her application be heard on June 24.

Rawal therefore wants her peers on the Supreme Court bench, save for Philip Tunoi who stands suspended, to rule that the Chief Justice acted illegally when he varied Justice Ndungu’s order that her application be heard on June 24.

“Let us therefore adjourn these proceedings and come back on June 24 as initially directed. When Justice Ndungu gave the directive, it was an informed decision. I was pushing for 28 days but in her wisdom she factored in the time it would take to file responses and all that and balanced it with the need to have this matter dispensed with expeditiously,” Kilukumi submitted.

READ: CJ fast-tracks divisive Rawal, Tunoi case from June 24 to June 2

The JSC through lawyers Ahmednasir Abdullahi and Charles Kanjama have however strongly opposed the suggestion that Rawal could sit on a matter she brought before the court describing it as “ludicrous.”

“What greater travesty of justice can you have in the Commonwealth and globally?” Kanjama posed.

He said the Chief Justice and Wanjala could not be accused of setting such a “ludicrous” precedent as to have a judge preside on a matter they’re party to.

He explained that the JSC was a corporate entity represented in the case by the Secretary to the Commission, Anne Amadi, and that Mutunga and Wanjala could not then be said to be directly involved in the matter as parties.

“(Tunoi) has named the Judiciary as a respondent and if we were to go by Rawal’s argument, then all judges are party to this case.”

The JSC argued that it was therefore not the Chief Justice who erred when he varied Justice Ndungu’s orders but the latter whose orders staying Rawal and Tunoi’s retirement, Abdullahi compared to the 1982 coup. “A fundamental breach of the Constitution.”

But in rejoinder Rawal accused the Chief Justice of varying Justice Ndungu’s orders after his “scheme” to hear hers and Tunoi’s applications for stay suo moto (alone) backfired “as revealed in emails made public.”

An accusation that echoed of the one made by former Chief Registrar of the Judiciary Gladys Shollei back in 2013 when she accused Mutunga of scheming to remove her from office.

READ: CJ complains his email account was hacked

The Supreme Court resumes its sittings on the matter on Wednesday when it will hear arguments on the other preliminary objections raised before delivering its ruling on Rawal’s contention that Justice Ndungu’s June 24 hearing date should stand.

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