Legal perspectives of ruling supreme court judges in Rawal, Tunoi ruling

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BY DAVID WANJALA

The debacle in the Supreme Court of Kenya, which has come to be referred to as Chief Justice Willy Mutunga’s “parting shot” in some circles – it pitted three applicants, two of whom happened to be members to the bench of the same court against their employer, the Judicial Service Commission – emanated from a granted application to Justices Philip Tunoi and DCJ Kalpana Rawal, by Justice Njoki Ndung’u.

The applicants, aggrieved by the decision of the Court of Appeal that unanimously upheld that of the High Court capping judges retirement ages at 70, sought orders, among others, that; the application be certified urgent and heard ex-parte in the first instance; pending the inter-partes hearing and determination of the application, the court issue a conservatory order directing that the decision of the High Court, to the effect that the retirement age of judges appointed before 27th August, 2010 is 70 years delivered on December 11, 2015 and affirmed by the Court of Appeal on  May 27, 2016, be suspended; and to issue conservatory orders directing that the applicants will continue to discharge their constitutional, judicial and administrative duties.

The single judge granted most of the applicants’ prayers, including certifying the application urgent. She also issued conservatory orders suspending the decision to the effect that the retirement age of judges appointed before 27/10/2010 is 70 years; directed that the applicants will continue to discharge their constitutional, judicial and administrative duties; prohibited the respondents and the Chief Registrar of the Judiciary from advertising vacancies in the offices of the applicants and from issuing any retirement notices to the applicants, and a host of other conservatory orders, pending inter-partes hearing and determination of the applications.

The most bizarre decision was the fixing of June 24, 2016 as the date of hearing, a week after the CJ would have retired, meaning there would be no quorum in the court to hear the urgent matter. In the meantime, one of the applicants, Justice Rawal, would have assumed CJ’s office and that of the President of the Supreme Court in acting capacity.

To fix the eminent quorum hitch and save the Supreme Court and the Judiciary at large from ridicule, the CJ fast tracked the hearing date to June 16 and formed a two-member bench to deal with preliminary issues, and a five-member bench – CJ Willy Mutunga, Justices Ibrahim Mohammed, Jackton Ojwang, Smokin Wanjala and Njoki Ndung’u to hear the case thereafter.

The two-member bench – made up of Justices Wanjala and Njoki – identified the following preliminary objections; the legal basis of the orders made in the matter by the Chief Justice to expedite the hearing and; to have the Court disqualify itself from hearing and determining the substantive applications on account of perceived impartiality of the Court as was constituted.

Three of the judges, Ibrahim, Wanjala and Mutunga recused themselves from hearing the substantive applications on account of perceived bias and carried the day, effectively retiring Justices Rawal and Tunoi, and paved way for the Judiciary to embark on hiring a new CJ, DCJ and one Supreme Court justice. Among the final orders of the Court were that the ex parte Orders granted by Justice Ndung’u were vacated, and the Judgment of the Court of Appeal shall stand until it is either affirmed, or reversed by a competent Bench of the SC.

Following are abridged versions of two opposing rulings by two of the five justices.

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