REPUBLIC OF KENYA
IN THE SUPREME COURT
(Coram: Mutunga CJ & P; Ibrahim, Ojwang, Wanjala & Njoki, SCJJ)
CIVIL APPLICATION NO. 11 OF 2016
HON. (LADY) JUSTICE KALPANA H. RAWAL ……………………………. APPLICANT
VERSUS
JUDICIAL SERVICE COMMISSION …………………………….….… 1ST RESPONDENT
THE SECRETARY, JUDICIAL SERVICE
COMMISSION ……………………………………………………………..…. 2ND RESPONDENT
OKIYA OMTATA OKOITI ……………………………………….. 1ST INTERESTED PARTY
LAW SOCIETY OF KENYA ……………………………….……. 2ND INTERESTED PARTY
INTERNATIONAL COMMISSION OF JURISTS (K) ……..….1ST AMICUS CURIAE
KITUO CHA SHERIA ………………………………………………….. 2ND AMICUS CURIAE
RULING OF MOHAMMED IBRAHIM, JUSTICE OF THE SUPREME COURT
- INTRODUCTION
- Civil Application No. 11 of 2016, Hon. (Lady) Justice Kalpana H. Rawal vs Judicial Service Commission & 4 others; and
- Civil Application No. 12 of 2016, Justice Philip Tunoi & another vs The Judicial Service Commission and another.
- BACKGROUND
- This application be certified urgent, and heard ex-parte in the first instance;
- Pending the inter-partes hearing and determination of this application, this Honourable Court be pleased to 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 seventy (70) years delivered on 11th day of December, 2015 and affirmed by the Court of Appeal on 27th May, 2016, be suspended.
- Pending the hearing and determination of the intended appeal, this Honourable Court be pleased to 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 seventy (70) years delivered on 11th day of December, 2015 and affirmed by the Court of Appeal on 27th May, 2016, be suspended.
- Pending the inter-partes hearing and determination of this application, this Honorable Court be pleased to issue conservatory order directing that the applicant will continue to discharge her constitutional, judicial and administrative duties as a Supreme Court justice, the Vice President of the Supreme Court and the Deputy Chief justice of the Republic of Kenya.
- Pending the hearing and determination of the intended appeal, this Honourable Court be pleased to issue a conservatory order directing that the applicant will continue to discharge her constitutional, judicial and administrative duties as a Supreme Court justice: the Vice President of the Supreme Court and the Deputy Chief Justice of the Republic of Kenya.
- Pending the inter-partes hearing and determination of this application, this Honourable Court be pleased to issue a conservatory order prohibiting the respondents, the Chief Registrar of the Judiciary and the Judiciary from advertising in any media whatsoever, vacancy in the office of the Deputy Chief Justice and or to commence in any manner whatsoever recruitment process for the replacement of the applicant as a Supreme Court Justice, the Vice-President of the Supreme Dourt of Kenya and the deputy Chief Justice of the Republic of Kenya.
- Pending the hearing and determination of the intended appeal, this Honourable Court be pleased to issue a conservatory order prohibiting the respondents, the Chief Registrar of the Judiciary and the Judiciary from advertising in any media whatsoever, vacancy in the office of the Deputy Chief Justice and or to commence in any manner whatsoever recruitment process for the replacement of the applicant as a Supreme Court Justice, the Vice-President of the Supreme Court of Kenya and the Deputy Chief Justice of the Republic of Kenya.
- Pending the inter-partes hearing and determination of this application, this Honourable Court be pleased to issue a conservatory order directing the respondents, the Chief Registrar of the Judiciary and the Judiciary from retiring or issuing any retirement notices to the applicant.
- Pending the hearing and determination of the intended appeal, this Honorable Court be pleased to issue a conservatory order directing the respondents, the Chief Registrar of the Judiciary and the Judiciary from retiring or issuing any retirement notices to the applicant.
- Pending the hearing and determination of the intended appeal, this Honorable Court be pleased to issue a conservatory order directing that in the event of a vacancy arising in the office of the Chief Justice, the applicant to act as the Chief Justice of the Republic of Kenya for the maximum duration stipulated under section 5 (4) of the judicial service Act, 2011.
- Pending the hearing and determination of the intended appeal, this Honourable Court be pleased to issue conservatory order directing the respondents, the Chief Registrar of the Judiciary and the Judiciary, that judges appointed prior to the 27th of August 2010, are eligible to apply for appointment to the offices of Supreme Court Justices; Deputy Chief Justice and Chief Justice respectively, notwithstanding that they have attained the age of seventy (70) years.
- Any other or further order that this Honourable Court may consider appropriate and just to grant in the circumstances.
- Costs of this application to abide the outcome of the intended appeal.
- The application is certified urgent and service of the certificate of urgency is dispensed with at this instance.
- Pending inter-parties hearing and determination of this application, a conservatory order is hereby issued directing that the decision of the High Court affirmed by the Court of Appeal today the 27/5/2016 to the effect that the retirement age of judges appointed before 27/10/2010 is 70 years be suspended.
- Pending the hearing inter-parties, a conservatory order is issued directing that the applicant will continue to discharge her constitutional judicial and administrative duties.
- Pending the hearing inter-parties of the application, a conservatory order is hereby issued prohibiting the respondents, the Chief Registrar of the Judiciary from advertising in any media whatsoever a vacancy in the office of the Deputy Chief Justice and Vice President of the Supreme Court of Kenya or to commence in any manner whatsoever the recruitment process of the applicant as a judge of the Supreme Court.
- Conservatory orders issue directing the respondents, the Chief Registrar of the Judiciary from issuing any retirement notices to the applicant.
- All respondents be immediately served with the order of the Court as issued.
- Inter-parties hearing of this application shall be heard and argued before the Court on Friday, 24th June, 2016 at 10.00a.m.
- It is so ordered.
- This application be certified urgent and admitted for hearing on a priority basis.
- The Court be pleased to issue an order staying execution of the entire judgement of the Court of Appeal delivered on 27th May, 2016 in Civil Appeal No. 6 of 2016 pending the hearing and determination of this application. For the avoidance of doubt, the 1st respondent be stopped and/or barred from retiring the applicant or taking any steps to retire the 1st applicant or moving to replace him as judge in the Supreme Court of Kenya including placing any advertisements in the Kenya Gazette or daily newspapers to replace him.
- The Court be pleased to issue an order staying execution of the entire judgement of the Court of Appeal delivered on 27th May, 2016 in Civil Appeal No. 6 of 2016 pending the hearing and determination of the intended appeal. For avoidance of doubt, the 1st respondent be stopped and/or barred from retiring the applicant or taking any steps to retire the 1st applicant or moving to replace him as judge in the Supreme Court of Kenya including placing any advertisements in the Kenya Gazette or daily newspapers to replace him.
- The Court be pleased to issue an order of injunction halting, stopping and or prohibiting the respondents or any organ of the judiciary from issuing the 1st applicant with a retirement Notice or retiring him pending the hearing and determination of this application.
- The Court be pleased to issue an order of injunction halting, stopping and or prohibiting the respondents or any other organ of the judiciary from issuing the 1st applicant with a retirement notice or retiring him pending the lodging, hearing and determination of an intended appeal against the judgement and orders made by the Court of Appeal on 27th May, 2016.
- Further and in the alternative, the Court be pleased to issue a conservatory order staying any execution or enforcement action of the judgement of the Court of Appeal delivered on 27th May, 2016 and/or judgement of the High Court delivered on 11th December, 2015.
- The orders made herein be served with immediate effect upon the respondents.
- The costs of and incidental to this application abide the result of the intended appeal.
- That this application be marked and certified as urgent.
- That a stay of execution is issued upon the entire judgement and orders of the Court of Appeal judgement in Nairobi Court of Appeal No. 6 of 2016 issued today on 27/5/2016.
- That the applicant continues to discharge his duties as a Supreme Court Judge pending hearing and determination of this application.
- That all parties affected should be served with these orders with immediate effect.
- That all parties concerned be served with the necessary documents to facilitate an inter-parties hearing of this application before the Court at 10.00a.m on Friday, June 24th
- For avoidance of doubt, there should be no steps taken by the respondent or its agents to retire Justice Philip K. Tunoi until the hearing inter-partes of this application.
- It is so ordered.
- I have perused the orders in this application granted ex-parte by NJOKI SCJ on May 27, 2016
- The said Orders were granted under an application that sought to be certified urgent and be admitted for hearing on a priority basis.
- NJOKI SCJ made the certification of urgency, granted interim orders, and fixed hearing inter-parties on Friday June 24, 2016.
- Granted the urgency under which the hearing of the application was sought, and the public interest in this application, I hereby invoke my administrative powers as the Chief Justice and president of the Supreme Court to fast track the hearing of the application.
- My directions are, therefore, as follows: 1) The Registrar of the Supreme Court serves the parties to appear for the hearing of this application inter-parties before a 5-judge bench of the Supreme Court on Thursday, June 02, 2016 at 10.00a.m. 2) The Registrar also serves the parties with notices to appear for directions on the said hearing tomorrow, May 31, 2016 at 10.00a.m before Wanjala and Njoki, SCJJ.
- The Hon. Chief Justice has today issued outrightly illegal and unlawful directions. He purports to tap his power to issue those illegal directions from a nebulous source described as “administrative powers as the Chief Justice and President of the Supreme Court”, without quoting the chapter and the verse conferring the Chief Justice with any such powers. Needless to state, no administrative power can be cited to override a judicial decision.
- The two judge bench is improperly empaneled in contravention of section 23(2) of the Supreme Court Act, 2011, which sets out the purpose and function of a two-judge bench.
- The Hon. Chief Justice has no legal power and authority to single-handedly vary an order issued by any judge of the Supreme Court under section 24(1) of the Supreme Court Act, 2011.
- The Hon. Chief Justice has neither legal power nor authority to act suo moto so as to vary an order issued by any judge of the Supreme Court acting pursuant to the powers granted under section 24(1) of the Supreme Court Act, 2011.
- The Hon. Chief Justice is not at liberty to interfere with the decisional independence of any judge of the Supreme Court.
- The Hon. Chief Justice has acted contrary to the Constitution of Kenya, 2010 (“the Constitution”) in interfering with the independence of the judges of the Supreme Court.
- The Hon. Chief Justice Interference is calculated and designed to undermine and completely erode the applicant’s constitutional right to a fair hearing in violation of Article 50 of the Constitution.
- Further and other grounds to be canvassed at the hearing.”
- THAT the application herein be certified urgent and heard ex-parte in the first instance.
- That the Honourable Chief Justice and President of the Supreme Court give directions for the hearing of the application herein by a single judge or alternatively two judge bench or alternatively five- judge bench without delay.
- THAT this Honourable Court review and/or set aside and vacate the orders issued ex-parte by Hon. Justice Njoki Ndungu on 27th May, 2016 in the matter herein.
- THAT this Honourable Court do hereby consider and strike out the Notice of Appeal filed in the applicant’s Application herein and dated 27th May, 2016.
- THAT this Honourable Court do issue any interim orders allowing the Court, however constituted under the doctrine of necessity, to deal with substantively and consider the applicant’s application and determine the same prior to the anticipated retirement of the Chief Justice, while upholding the cardinal rules of natural justice.
- THAt this Honourable Court do issue orders declining to take up the intended appeal by the applicant herein in exercise of its constitutional and inherent powers to prevent abuse of court process and to uphold constitutionalism and the rule of law.
- THAT the respondents/applicants costs be provided for.
- THAT this Honourable Court has no jurisdiction to entertain the instant application or any other application or appeal filed in respect of the judgement and order of the Court of Appeal in Civil Appeal No. 1 of 2016, delivered on the 27th day of May 2016, because all its judges have either supported or opposed the contention that judges appointed under the repealed Constitution should retire upon attaining the age of 70 years.
- THAT by dint of Article 50(1) of the Constitution, jurisdiction of a court can only be exercised where the court is impartial. Otherwise, a Court which is not impartial is stripped of jurisdiction. Further and in particular:
- A court cannot exercise jurisdiction where doing so violates the enjoyment of the absolute right to a fair trial;
- A court which is not impartial has no jurisdiction under the Constitution;
- Jurisdiction must be declined where a court is so conflicted that it cannot be impartial.
- All matters must be presided over or decided by judges whose detachment and neutrality is not as clearly compromised as is the case with the current judges of the Supreme Court on the subject matter of the retirement age of judges appointed under the repealed Constitution.
- THAT pursuant to Articles 50(1), 73(1)(a)(iii) and 73(2)(b) of the Constitution, the disqualification of all current Supreme Court judges from entertaining any applications or appeals filed against the judgement and order of the Court of Appeal delivered on the 27th day of May 2016, in Civil Application No. 1 of 2016, is mandatory and cannot be waived as the learned judges have an obligation to avoid participating in this case where they have taken sides and the grounds for their disqualification are undeniably clear.
- THAT the issue herein is outright disqualification of all Supreme Court judges and not voluntary recusal of the judges.
- THAT disqualification based on the precise criteria in Article 50(1) of the Constitution is non-discretionary and cannot be waived by anybody or authority.
- THAT the rule of necessity (also known as the Concept/Doctrine of the Duty to sit) cannot be applied herein.
- THAT under the hierarchy of rights enshrined in the Constitution of Kenya, civil right to appeal is inferior to and is trumped by the entrenched and absolute human right to a fair hearing and, where they conflict, the right to a fair hearing and, where they conflict, the right to a fair hearing prevails.
- THAT because it is disqualified from entertaining this matter, the decision of the Court of Appeal in Civil Appeal No. 1 of 2016, delivered on May 27th 2016, stands as the final decision in the matter.
- THAT there is an overwhelming public interest to sustain the decision of the Court of Appeal in Civil Application No. 11 of 2016 as the final decision in this matter.
- THAT Civil Application No. 11 of 2016 is an abuse of the Court process.
- THAT this application be certified urgent and heard ex-parte in the first instance.
- THAT, the Court be pleased to vacate, discharge and set aside the ex-parte orders issued by the Honourable Lady Justice N. S. Ndungu on 27th May, 2016.
- THAT, the petition of Appeal and Notice of Motion dated 27th May, 2016 be struck out.
- THAT, the costs of and incidental to this application be provided for.
- THAT this application be certified as urgent and be heard on priority basis and in priority to Civil Application No. 11 of 2016, on a date to be allocated by the Court.
- THAT the Court does (sic) declare that conservatory orders awarded in Civil Application No. 11 of 2016 to be irregular, null and void ab initio.
- THAT the Court be pleased to vacate, discharge or set aside the conservatory orders dated 27th May, 2016 and issued in Civil Application No. 11 of 2016.
- THAT the Court be pleased to strike out Civil Application No. 11 of 2016.
- THAT the Court do disqualify itself from entertaining any other appeals or applications arising from the decision of the Court of Appeal in Civil Appeal No. 1 of 2016, delivered in Nairobi on May 27th
- THAT the Court be pleased to declare that because it is disqualified from entertaining this matter, the decision of the Court of Appeal in Civil Appeal No. 1 of 2016, delivered in Nairobi on May 27th 2016, stands as the final decision in the matter.
- THAT such other or further orders as may be just be made to meet ends of justice and to safeguard and protect the authority and dignity of this Honourable Court.
- THAT the 1st respondent (Hon. Lady Justice Kalpana Rawal) be condemned to costs.
- All intended Amicus to file and serve their applications on all parties in this matter.
- All the applications filed by the Intended Amicus will be heard on 2nd June 2016 at 10.00a.m. before the five judge bench.
- The Notice of preliminary objection filed by counsel for the applicant dated 30th May, 2016 to be served upon all parties and will be heard by the five judge bench on 2nd, 2016 at 10.00a.m.
- The preliminary objection filed by Okiya Omtatah Okoiti dated 31st May, 2016 will be heard by the five judge bench on 2nd June, 2016 at 10.00a.m.
- The Notice of motion application filed by Messrs. Mumma and Kanjama to be served on all the parties and the same will be heard by the five judge bench on 2nd June, 2016 at 10.00a.m.
- These are the directions issued by this Court.
- All intended Amicus to file and serve their applications on all parties in this matter
- All the applications filed by the Intended Amicus will be heard on 2nd June 2016 at 10.00a.m before the five judge bench.
- The Notice of preliminary objection filed by Counsel for the applicant Mr. Kiragu kimani, dated 31st May, 2016 to be served upon all parties and will be heard by the five judge bench on 2nd June 206 at 10.00a.m
- The Notice of motion application dated 30th day of May, 2016 filed by Issa & company advocates be served on all parties and the same will be heard by the five Judge bench on 2nd June, 2016 at 10.00a.m.
- These are the directions issued by this Court.
- The notice of motion application dated 31st May, 2016 filed by Mr. Okiya Omtatah be served on all the parties.
- These are the directions issued by this Court.
- JURISDICTION DEMYSTIFIED
- It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and
- The subject matter of the case is within its jurisdiction, and no feature in the case which prevents the court from exercising its jurisdiction; and
- The case comes before the court initiated by the (sic) due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction”.
- When the subject matter of the case is within the court’s jurisdiction.
- Whether there is any feature in the case which prevents the court from exercising its jurisdiction.
- When it is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another.
- Jurisdiction is a matter of substantive law no litigant can confer jurisdiction on the court where the Constitution or statute or any provision of the common law says that the court does not have jurisdiction.
- Jurisdiction cannot be assumed in the interest of justice.
- Nothing shall be intended to be outside the jurisdiction of the superior court but that which specifically appears to be so and on the contrary nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly alleged.
- Although courts have great powers yet their powers are not limited. Their jurisdiction is confined, limited and circumscribed by the statute creating it.
- The court is not hungry for jurisdiction.
- Judges have a duty to expound the jurisdiction of the court and not expand it as by so doing the court will be usurping the functions of the legislature.
- A court cannot give itself jurisdiction by misconstruing a statute.”
- THE PRELIMINARY OBJECTION BY MR. OMTATAH
- SUBMISSIONS
- Omtatah’s submissions
- 1st and 2nd Respondents’ in Application No. 11 of 2016
- 1st and 2nd Respondents in Civil Application No.12 of 2016
- 1st Amicus in Civil Application No. 11 of 2016 (ICJ)
- 3rd Amicus in Civil Application No. 11 of 2016 (The Law Society of Kenya).
- Lady Justice Rawal, applicant in Civil Application No. 11 of 2016
- 2nd Amicus, Kituo cha Sheria
- Tunoi, applicant in Civil Application No 12 of 2016
- ANAYSIS AND DETERMINATION
- I aver that there is practically no way the Supreme Court can entertain the proceedings herein, or any other on the subject matter, given that all the seven judges of the Court are disqualified from entertaining the case because they have in one way or other publicly taken a position on the question of whether judges appointed under the repealed Constitution should retire at age 70 or 74 years.
- Chief Justice Dr. Willy and Hon. Justice Smokin Wanjala, being members of the 1st respondent which had decreed that the judges must retire upon attaining the age of 70 years, cannot preside in their own cause.
- Lady Justice Kalpana Rawal and hon. justice Philip Tunoi are litigants who have challenged the decision to retire them at the age of 70 years, hence, they cannot preside in their own cause.
- Justice Mohammed Ibrahim, Hon. Justice Ojwang, and Hon. Justice Njoki Ndungu were part of the bench which, in Supreme Court Petition No. 23 of 2014, expressed itself in support of Hon. Justice Philip Tunoi’s and Hon. Lady Justice Kalpana Rawal’s position that the retirement age of judges appointed under the old Constituion was 74 and not 70 years.
- The Judicial Service Commission has made a finding of misconduct in the subject matter against Hon. Lady Justice Kalpana Rawal, Hon. Justice Philip Tunoi, Hon. Justice Mohammed Ibrahim, Hon. Justice Jackton Ojwang, and Hon. Justice Njoki Ndungu, and admonished them.
- This Memorandum reflects the considered opinion of four affected Justices of the Supreme Court, who are seeking urgent action to safeguard their Constitutional rights, and rectify the effects of actions taken in relation to them over the last two-and-a-half years.
- This Memorandum should be considered and acted upon by the Judicial Service Commission, and should be the basis of appropriate advice to all relevant organs of the State, by the honourable The Attorney-General.
- From the individual-rights perspective, the judges who were beneficiaries of the promise (and guarantee) of retirement-at-74, will, if retired at 70, be prejudiced in their pension-entitlement…
- We conclude our argument and recommendation by calling for urgent action as follows:
- The Honourable The Attorney General do advise all relevant State organs, that we are not new Judges under the Kenya judiciary, and that we are entitled to all our rights and benefits related to our longevity of service as Judges.
- All lawful decisions regarding our rights and benefits as from the time we were elevated to the Supreme Court Bench, to-date be duly taken; and that in this regard, all our dues “forfeited” so far be re-evaluated and duly restored.
- The Judiciary do formally acknowledge and express on record, to which we be accorded access, our retirement age of seventy-four (74) years, as applied when we were employed by the Kenya judiciary, and this be honoured and safeguarded.
- The judiciary do establish and maintain permanent records of our pensionable judicial service, reckoning from the exact dates when each one of us commenced service as a Judge under the employ of the Kenya Judiciary, by virtue of a valid Constitution.
- As we sense that our current remuneration-benefits are not properly aligned, as the Judiciary and the Salaries Review Commission have not in the past addressed the fundamental Constitutional and legal issues set out in this memorandum, we ask them to re-work all such benefits, to ensure that henceforth, we receive all that is due to us, with all accrued arrears.
- These matters be conscientiously and objectively deliberated upon, and a formal record of actions taken as we have asked, be brought to our attention.
- it is our humble and earnest request that all due actions taken on our requests based on this memorandum, shall be formally communicated to us in written form, duly signed, by the relevant authorities.”
- assert the supremacy of the Constitution and the sovereignty of the people of Kenya;