, NAIROBI, Kenya, Jun 7 – The Supreme Court will on Tuesday hear arguments on whether it is competent to preside over a case involving Deputy Chief Justice Kalpana Rawal and fellow Supreme Court Judge Philip Tunoi.
It will hear arguments from activist Okiya Omtatah who wants the bench to disqualify itself on account of its members having been perceived to have taken sides in the dispute that pits Rawal and Tunoi against their employer – the Judicial Service Commission.
It is such a situation that the Law Society of Kenya had sought to avoid when it proposed mediation but the parties were uncompromising in their demands.
Tunoi offered to retire after the tribunal probing the claim that he took a Sh200 million bribe from Nairobi Governor Evans Kidero concludes its work.
Rawal on the other hand offered to retire at the end of the year with full benefits and pension that would include the next three years after that; which is when she contends she should retire, at 74.
The JSC was however not willing to bargain on the constitutional requirement that the judges retire at 70.
“This particular issue has been heard and determined by a total of 12 judges of the superior courts who have all reached a unanimous determination that the retirement age is 70 years. Five in the High Court and seven in the Court of Appeal,” JSC Vice Chair Margaret Kobia communicated on Friday after turning down the LSK proposal for dialogue.
READ: Let’s fight it out in court, JSC tells Rawal and Tunoi.
On Tuesday the Supreme Court will also hear from the JSC which contends that Justice Njoki Ndungu had no business extending Rawal and Tunoi’s time in office after the Court of Appeal adjudged that they should have retired at 70 on May 27.
READ: Judiciary want orders barring Rawal, Tunoi exit set aside
The five judge bench that includes Chief Justice Willy Mutunga, Justice Ndungu, Smokin Wanjala, Jackton Ojwang and Mohammed Ibrahim will also be hearing on Tuesday a notice of preliminary objection filed by Rawal and Tunoi.
The two contend that the Chief Justice acted in excess of his powers when he varied the orders given by Justice Ndungu on May 27 and pushed the inter-partes hearing of their application for stay of the Court of Appeals decision on their retirement up from June 24.