, NAIROBI, Kenya, May 27 – The court ruling directing that Deputy CJ Kalpana Rawal and suspended Supreme Court Judge Philip Tunoi should retire and the exit of Chief Justice Willy Mutunga portend a major crisis in the Judiciary.
Chief Justice Willy Mutunga is due to leave on June 16, but the process to pick his replacement is yet to begin.
The process of replacing Rawal and Tunoi is also in limbo after they gave notice of their intention to challenge, before the Supreme Court, the decision by the five-member Court of Appeal bench that all judges must retire at 70 years as required by the 2010 Constitution.
Justice Rawal who was the Deputy President of the Supreme Court was retired on January 16, but she moved to court to challenge the decision.
Three other Supreme Court Judges – Jackton Ojwang, Mohamed Ibrahim and Njoki Ndung’u – are at loggerheads with the JSC after they were “admonished” for alleged misconduct and their suitability to serve is already being questioned before the High Court.
Dr Mutunga is unlikely to handle any application for a stay of the Appellate Court’s decision on the basis that he is the outgoing Chairman of the JSC and President of the Supreme Court.
The only remaining Supreme Court Judge, Smokin Wanjala, is its representative on the JSC and cannot handle the controversial dispute.
The landmark decision has also sounded the death-knell for the tribunal appointed by President Uhuru Kenyatta to investigate the sensational Sh200million bribery allegations by former Kass radio journalist Geoffrey Kiplagat against Justice Tunoi.
The judge is alleged to have pocketed the money from Nairobi Governor Evans Kidero in 2014 to influence the outcome of his election petition lodged by Kabete Member of Parliament Ferdinand Waititu.
The seven-member tribunal, led by the Chairman of the Judges and Magistrate’s Vetting Board (JMVB), Sharad Rao, has been holding its public sessions at the Anniversary Towers in Nairobi.
The panel was to resume its sittings on Tuesday but its mandate will have evaporated since only serving Judges undergo investigations and Justice Tunoi, who is now 72 years old, will be deemed to have retired.
The Appellate bench, chaired by Justice G.B.M. Kariuki, ruled that the office of the Deputy Chief Justice and the Supreme Court were created by the 2010 Constitution and its office-bearers must retire at 70 years. It did not matter whether Justices Rawal and Tunoi were initially appointed under the abolished Constitution because the Supreme Court was non-existent before 2010 and was not a successor of any other court, Justices Kariuki, Patrick Kiage, William Ouko, Jamila Mohamed and James Otieno-Odek declared.
“It was a deliberate and conscious decision by the Constitution makers that all Judges of the High Court, Court of Appeal and Supreme Court must leave office upon attaining the age of 70 years. There was no specific proviso in the Constitution exempting serving Judges who were appointed under the abrogated Constitution,” they said.