NAIROBI, Kenya, Jun 14 – The Supreme Court was on Tuesday afternoon expected to deliver a landmark ruling on its jurisdiction to hear, as constituted, applications filed by Deputy Chief Justice Kalpana Rawal and Supreme Court judge Philip Tunoi challenging their retirement at 70.
Activist Okiya Omtatah has sought to have the bench disqualify itself from hearing the matter on the grounds that the judges are conflicted.
He argues that prior to the filing of the notices of appeal to the Supreme Court by Rawal and Tunoi, the five judges on the bench already took stands on the matter; the Chief Justice Willy Mutunga and Justice Smokin Wanjala by virtue of being members of Judicial Service Commission – who are respondents in the matter – and based on a judgment delivered by the remaining three judges: Njoki Ndungu, Mohammed Ibrahim and Jackton Ojwang, effectively disputing the authority of the JSC to retire judges.
He therefore argues that the five judges cannot impartially hear the matter brought before them by their peers, a position backed by the Law Society of Kenya and the Kenya Chapter of the International Commission of Jurists who are on record as friends of the court.
In fact the LSK had sought to have the retirement dispute handled out of court.
Rawal and Tunoi on the other hand have taken issue with the matter being heard prior to June 24 as it was initially scheduled by Justice Ndungu, before the Chief Justice stepped in and pushed up the hearing on account of his impending retirement.
Rawal and Tunoi argue that it was illegal for the Chief Justice to vary Justice Ndungu’s orders and want the matter put on hold until the date she’d set when she issued conservatory orders suspending the Court of Appeal judgment that the applicants should have retired at 70.
JSC had wanted Rawal and Tunoi’s applications for the stay orders heard inter-partes last Friday given the Chief Justice will be effectively retired on Thursday.
Rawal and Tunoi however insisted that the question of jurisdiction be addressed first before any other matters are canvassed.
Rawal has argued that the retirement of the Chief Justice should have no impact on the how the case proceeds as she can sit on the matter given Tunoi is suspended and the court needs at least five judges to be properly constituted.