, NAIROBI, Kenya, Jun 2 – A five-judge bench of the Supreme Court will on Thursday sit to hear arguments on an appeal made by Deputy Chief Justice Kalpana Rawal and Supreme Court judge Philip Tunoi challenging the Court of Appeal finding that they should retire at 70.
The bench comprising Chief Justice Willy Mutunga and Supreme Court judges Njoki Ndungu, Smokin Wanjala, Jackton Ojwang and Mohammed Ibrahim will first hear a notice of preliminary objection, filed by Rawal and Tunoi, to the Chief Justice’s direction that the inter-partes hearing be held today and not on June 24 as had been ordered by Justice Ndungu.
Tunoi and Rawal argue that the Chief Justice holds no such power as he contended he did by virtue of his, “administrative powers as the Chief Justice and President of the Supreme Court.”
In their notices of objection, Rawal and Tunoi contend that the Chief Justice had no business varying Justice Ndungu’s orders as no application had been made in that regard.
They also contend that only a five-judge bench of the Supreme Court can vary the orders of a Supreme Court judge.
Once the notices of preliminary objection are dispensed with, the five-judge bench will hear submissions on applications filed by the Judiciary and Judicial Service Commission seeking to have Justice Ndungu’s orders – suspending the Court of Appeal judgement – set aside.
The Judiciary and JSC contend they were issued irregularly for a number of reasons among them the fact that Rawal and Tunoi’s applications for stay should have first gone to the Chief Justice as President of the Supreme Court.
Secondly, they argue that even if the Chief Justice was indisposed, the applications for stay should have gone before Justice Ibrahim who was the duty judge.
Third, they say Justice Ndungu gave the orders ex-parte despite the JSC and the Judiciary making their availability, “at short notice,” for arguments on any application for stay of the Court of Appeal’s judgment known to the registrar.
Lawyer Issa Mansur has also sworn that no certificate of urgency was attached to Tunoi’s application for stay.
He also questions how Justice Ndungu could have stayed the Court of Appeal judgment before reading it. “I personally attended immediately the registry but was informed that the judgment was not ready and to check later in the afternoon. I was back at the registry at 2pm but the judgment was still not ready.”
The bench will also be hearing from activist Okiya Omtatah who wants the entire bench to disqualify itself on the grounds that they cannot impartially hear the appeal as they have taken sides on the matter.
He contends that the Chief Justice and Smokin Wanjala – as members of the JSC — are parties to case.
He also contends that Ojwang, Ndungu and Ibrahim cannot be impartial as they, in a ruling, opposed the JSC’s retirement of Rawal and Tunoi.
On Friday, May 27 the Court of Appeal upheld the High Court finding that even the judges who were appointed to the bench prior to the promulgation of the Constitution on August 27, 2010, should retire at 70 as stipulated in the Constitution and not at 74 as was the case prior.
Rawal and Tunoi who were appointed to the bench prior to the promulgation date insist their tenures end when they turn 74.