, NAIROBI, Kenya, Jun 2 – A no holds barred, bare knuckled fight was expected in the Supreme Court on Thursday when the Deputy Chief Justice Kalpana Rawal and Supreme Court judge Philip Tunoi, on one side, and the Judiciary and Judicial Service Commission, on the other, ‘faced off.’
But things didn’t quite ‘go down’ that way as the Law Society of Kenya sought to forestall any bloodshed by proposing that the two sides sit across from one another on the mediation table and seek an amicable solution to the dispute on when judges appointed prior to the promulgation of the Constitution should retire.
The Law Society which was enjoined as amicus curiae on Thursday argued that an alternative dispute resolution mechanism was preferential to having the five-judge bench of Chief Justice Willy Mutunga and Supreme Court judges Mohammed Ibrahim, Jackton Ojwang, Smokin Wanjala and Njoki Ndungu sit over a case brought before them by their peers particularly given they were perceived to have already taken sides on the matter.
“The matter before your lordships touches on the standing of the court. There is an application for instance which challenges the various lordships being involved in the matter. In our view, there is a danger that if various positions in the matter are upheld, we may not have a bench to hear this various disputes,” the LSK argued.
Okiya Omtatah who is the applicant referred to above, endorsed this position reiterating his argument that the bench could not claim impartiality as required of them.
“We cannot run away from the fact that we have a conflicted bench. Justice Rawal and Justice Tunoi are your peers and the bench is professionally conflicted,” he submitted.
A position which the Chief Justice, in a sense, acquiesced to when he said to the lawyers representing JSC: “your clients are in the building.”
A number of parties including the Ombudsman, former LSK Chief Executive Officer Apollo Mboya and Omtatah, have argued that the CJ cannot sit in the matter as he is party to it on account of being the JSC chairman.
The JSC’s legal representatives were also ‘conflicted’ on the subject of mediation with Ahmednasir Abdullahi who represents the JSC in the Rawal matter opposing it right off the bat, “this is not a matter that parties can negotiate in smokey rooms,” while Muite reserved judgment and proposed instead that the parties adjourn to give the LSK proposal a listening.
“I am anxious not to take a position which would be embarrassing because the clients that he and I represent should speak in one voice. But having said that, Senior Counsel Ahmednasir might defer a little because I’ve practiced a little longer than he has. We haven’t actually heard from the Law Society even in outline what it is that they have in mind as an option for mediation as an option for resolution of this matter and I think it’s important for us to have the opportunity to hear from the Law Society the salient features of what they have in mind and so that we take instructions. So that we come back and inform this court if there is white smoke or there isn’t.”
It was the proposal that carried the day with the Chief Justice directing the parties to meet with the LSK in his boardroom and report back to court later in the afternoon. “You can smoke there if you want.”
Kituo cha Sheria’s lawyer John Khaminwa however, cautioned that mediation would not put a definitive end to the question of retirement as it could still be brought up the 40 other judges who were appointed prior to promulgation of the Constitution.