, NAIROBI, Kenya, Sep 7 – The Law Society of Kenya has cautioned that a decision to bar judges above 70 years from hearing cases pending determination of a suit challenging their age limit could hamper dispensation of justice in the Supreme Court, Court of Appeal and High Court.
LSK President Erick Mutua says the society appreciates that the directive was meant to forestall any likely constitutional crisis that may arise as a result of judges serving beyond their mandatory age of 70 years.
“Taking into account the importance of the offices of the Deputy Chief Justice and other judges in the dispensation of justice, we urge all the concerned parties to cooperate with the courts for purposes of fast-tracking and expeditious hearing and determination of the question pending in court,” Mutua said.
The decision to bar judges above 70 from continuing to hear cases pending the suit challenging the retirement age, was made by the Judicial Service Commission which said continuing to hear cases and render decisions by the judges was causing anxiety.
“Out of an abundance of caution and in order to preserve the integrity of the judicial process, and forestall any likely constitutional crisis that may arise as a result of judges serving beyond their mandatory age of 70 years, it was resolved that the respective judges will not hear and participate in any further proceedings until the case that they filed is heard and determined,” JSC directed.
Supreme Court judge Phillip Tunoi and High Court judge David Onyancha moved to the constitutional court last year challenging their removal from the bench before they attained the age of 74.
They argue they were hired prior to the promulgation of the 2010 Constitution and the previous retirement age of 74 should apply.
The JSC resolved that the retirement age of judges is 70 years in accordance with Article 167 (1) of the Constitution of Kenya, 2010, a position agreed by the Law Society of Kenya.
Following from a legal opinion from the Attorney General, the JSC has been giving notices to judges whose retirement was due.
The JSC however emphasised that “in accordance with the conservatory orders granted by the court, the judges are not being removed or retired, however they will not continue sitting to discharge judicial functions or determine cases in court.”
Given the decision on the retirement age, the JSC served notice to Deputy Chief Justice Kalpana Rawal who is due to retire from office on January 15, 2016.
“Due to the importance of the office of the Deputy Chief Justice (DCJ) and considering the long recruitment process involved, the Commission has decided to advertise the position and commence the recruitment process to have a new DCJ in office by the time the current occupant retires.”