NAIROBI, Kenya, Jun 10 – Deputy Chief Justice Kalpana Rawal and Supreme Court judge Philip Tunoi now say their application for a stay of the Court of Appeal decision that they should have retired at 70, and that they had sought to have certified as urgent, can wait and be heard post Chief Justice Willy Mutunga’s retirement.
Through lawyers Pheroze Nowrojee and Waweru Gatonye, the two on Friday opposed the Judicial Service Commission’s proposal that the court get straight to the application arguing that the court first needed to make a determination on their contention that it had no business sitting before June 24 which is when Justice Njoki Ndungu had scheduled the hearing when she issued conservatory orders blocking their retirement.
“There are many, many cases in which the preliminary objection is dealt with and then the substantive thing goes on for hearing months later. That’s why I’m saying there is no hurry on a matter that is going to affect this Judiciary for the next (so many) years,” Nowrojee said.
A five judge bench of the Chief Justice, Ndungu, Mohammed Ibrahim, Jackton Ojwang and Smokin Wanjala had sought to hear the JSC’s application for the setting aside of Justice Ndungu’s orders before giving its ruling on Rawal and Tunoi’s objection to what they said was the Chief Justice’s interference with her independence when he varied her orders and, “fast-tracked,” the hearing of their application.
“I heard you demand a written, reasoned ruling. Is that a fair demand given the time frame… we’ve got to finish this matter before the sixteenth,” the Chief Justice posed to Nowrojee on Friday after he demanded that their preliminary objection be ruled on first.
June 16 being Mutunga’s date with retirement.
Despite the Chief Justice’s concern, the bench amended its initial directions and said it would first rule on Rawal and Tunoi’s preliminary objection to the varying of Justice Ndungu’s orders and activist Okiyah Omtatah’s objection to their sitting over the matter, on Tuesday.