, NAIROBI, Kenya, May 28 – The High Court has restrained the Judicial Service Commission (JSC) from retiring two judges who have reached 70 years, pending conclusion of a case seeking to peg the retirement age of judges who were on the bench prior to the promulgation of the Constitution, at 74.
Justice George Odunga’s stay of Supreme Court Judge Philip Tunoi and David Onyancha’s (High Court) retirement is likely to impact 36 other judges who have reached the retirement age of 70.
Odunga said he granted Tunoi and Onyancha’s prayer to remain on the bench pending the determination of their suit as there are no provisions for the reinstatement of a retired judge.
“If stay is not granted the petition may be rendered ineffective should the judges be retired and the petition succeed as there are no mechanisms in place to reinstate a retired judge,” he explained.
Odunga also found that Tunoi and Onyancha had raised pertinent issues in their petition in which they accuse the JSC of creating confusion by issuing two conflicting circulars on the retirement age of judges who were in office prior to the promulgation of the Constitution.
Through their lawyer Fred Ngatia, they told the court that on May 24, 2011 the JSC assured them that the retirement age of 74 – which had been in place prior to August 28, 2010 – would continue to apply. READ: Judges Tunoi, Onyancha challenge retirement.
An assurance the JSC reneged on, according to Ngatia, through a circular dated March 27, 2014 in which they set the retirement age of all judges at 70 in line with the Constitution.
“No effort to annul the first circular was made hence the two are contradictory and impossible to reconcile. It is due to such conflicting decisions that it is now necessary for the court to adjudicate which decision is in accordance with the law,” Ngatia argued.
They therefore contend that their legitimate expectations would be violated should the High Court fail to adjudge in their favour.
Another of their prayers is that the JSC be directed to factor in seniority and length of service when determining accruing benefits.
Tunoi and Onyancha say they were forced to move to court after the JSC failed to address their concerns.
Their petition will now be heard beginning on June 9; six days after Tunoi and Onyancha were expected to vacate their offices.