Deputy Chief Justice Kalpana Rawal and suspended Supreme Court judge Philip Tunoi have lost their bid to stay on in the Judiciary until they attain the age of 74 years.
In what could go down as a mark of the tussle surrounding the succession of outgoing Chief Justice Willy Mutunga, the five-judge Bench was split down the middle leaving the CJ as arbiter to break the historic impasse.
The split reached a crescendo when Justices Mutunga, Ibrahim Mohamed and Smokin Wanjala disqualified themselves from handling the controversial 70-year retirement dispute and left their two colleagues Jackton OJwang’ and Njoki Ndung’u clinging on straws.
The majority decision decided to revoke the conservatory issued by Ndung’u on May 27 suspending the decision made earlier in the day by the seven-member Court of Appeal bench that confirmed that all Judges must retire at 70 years, irrespective of whether they were appointed before or after the promulgation of the 2010 Constitution.
Seek replacement
In accepting that he had also declined jurisdiction to handle the Rawal age appeal case, Mutunga reinstated the Appeal Court ruling that had knocked out Rawal.
By extension, Tunoi, who is facing a tribunal after being suspected of taking a Sh200 million bribe to give a favourable ruling, is now bound to also go out, negating the probe against him since he will not longer be a judge.
This also means that when Mutunga retires tomorrow as he had earlier indicated, a year before he attains the age of 70, the Supreme Court will be left with four judges, with three slots to fill, two of them the top ones.
The Judicial Service Commission (JSC) may now be at liberty to commence the recruitment exercise to seek replacements for Mutunga, Rawal and Tunoi. Mutunga retires tomorrow while the two senior most Judges have been protesting they deserve to retire at 74.
Immediately after Mutunga made the Appeal Court stay ruling, a flurry of activity by lawyers ensued, seeking interpretation and asking for a stay of Rawal’s appeal.
Lawyers Waweru Gatonye and Kioko Kilukumi, representing Rawal and lawyer Pheroze Nowrojee and Kiragu Kimani for Tunoi asked for a 21-day stay of the Supreme Court decision to enable the aggrieved judges to decide their next course of action.
But lawyers Paul Muite and Ahmednassir Abdullahi, for the JSC, argued the two judges stood to suffer no prejudice since they could be compensated by way of damages in case they were replaced and then finally won the case.
Ibrahim set the ball rolling when he upheld a preliminary objection raised by civil rights crusader Okiya Omtatah that the independence and impartiality of three Judges was compromised following their bitter fallout with the JSC for openly supporting Rawal and Tunoi.
On the other hand, Mutunga was the JSC chairman while Wanjala was a member of the commission.
Ibrahim confessed that he and Ndung’u and Ojwang had written a memorandum to the JSC protesting alleged interference with their judicial duties. “It is with a sad and heavy heart that I have disqualified myself and caused a quorum deficit in the hearing of this matter,” he said.
But Ojwang went ballistic against Mutunga’s decision to have fast-tracked the hearing of the applications after Ndung’u had imposed sanctions and given a hearing date for June 24. He invalidated the CJ’s decision to have the matter heard from June 2.
Constitutional rights
Wanjala also disqualified himself since he had previously made known his position on the 70-year retirement requirement but said his membership of the JSC was not an automatic bar to his participation in the suit. However, he defended Mutunga’s intervention to fast-track the hearing of the dispute, which would have brought ridicule on the Supreme Court and the Judiciary with the imminent departure of the CJ.
Ndung’u went to great lengths to defend her actions as the Duty Judge and why Rawal and Tunoi deserved the temporary orders to safeguard their constitutional rights and freedoms. She reiterated that her brushes with the JSC were purely contractual with her employer.
The post Supreme judges dismiss Rawal’s age limit appeal appeared first on Mediamax Network Limited.