NAIROBI, Kenya, Jun 6 – The divisions in the Supreme Court played out on Monday when the judges decided on whether or not to enjoin advocate Osundwa Sakwa in the retirement dispute that has fissured the bench.
Justice Ndungu and Jackton Ojwang who are perceived to be sympathetic to Deputy Chief Justice Kalpana Rawal and fellow Supreme Court judge Philip Tunoi’s bid to retire at 74 and not 70 as their employer the Judicial Service Commission contends, were of the view that Osundwa should be enjoined.
Chief Justice Willy Mutunga and Justice Smoking Wanjala, who are both members of the JSC, were of a different opinion that he should not and with Justice Mohammed Ibrahim’s backing, they carried the day.
Osundwa applied to be enjoined in the interest of the public who he said were invested – both literally and figuratively – in the outcome of the tribunal process Tunoi is subject to.
Should the Supreme Court find as the High Court and Court of Appeal had that Tunoi should have retired at the age of 70, he submitted through lawyer Nelson Having, the tribunal would be rendered redundant and the public robbed of the opportunity to know if indeed there is truth to the claim that he took Sh200 million or if he was the victim of a vendetta.
While Justices Njoki and Ojwang were satisfied that Osundwa had laid sufficient basis to be enjoined, they both found it “curious” that their peers had not.
Their three counterparts disallowed Osundwa’s application on the grounds that it was “premature, an abuse of the court process,” and according to Justice Wanjala, sought to interfere with the Supreme Court’s ability to carry out its functions.
The bench will on Tuesday hear arguments on whether it has any business hearing any further applications on the matter given the perceived conflicts of interest.