Retired Supreme Court judge Phillip Tunoi rejected a onetime payout of Sh40 million to quit, former Chief Justice Willy Mutunga has revealed.
The amount equaled four years of his salary. Mr Tunoi had gone to court to challenge a decision to retire him early.
He was eventually kicked out when the courts held that Supreme Court judges retire at 70 years.
A Supreme Court judge earns an entry level salary of Sh792,000. The amount can rise to Sh1,218,535, minus allowances.
Dr Mutunga was testifying yesterday before High Court judge Weldon Korir in a case where lawyer Apollo Mboya wants three Supreme Court judges removed.
He laid bare the intrigues that played out to make sure Justice Tunoi, alongside former Deputy Chief Justice Kalpana Rawal who retired at 70, were kicked out.
The two were his likely successors being the senior most judges at the apex court then.
According to Mutunga, the Judicial Service Commission (JSC) approached Tunoi with a proposal that he retires in 2016 aged 70 instead of bowing out at 74.
JSC dangled a four years’ salary payout on condition that he relinquishes his position.
This meant that Tunoi would be paid for work he had not done.
The idea did not materialise since a petition filed by Tunoi and Rawal ended up in the hands of Mutunga and Justices Smokin Wanjala and Mohamed Ibrahim.
Wanjala was a strong supporter of the idea that judges retire at 70. The judges spelt the end of the road for their two colleagues.
Rawal and Tunoi had lost the case at the Appeals Court, meaning that JSC only required a stalemate in the Supreme Court to send the two home.
"There was a robust dialogue between JSC and the 38 judges of superior courts who were affected by this dispute and at some point, I remember JSC suggested that Tunoi be paid his dues for the four years he was contesting to remain in office so that he retires at 70,” Mutunga said.
The former Chief Justice was also questioned on why JSC decided to warn Justices Mohamed Ibrahim, Jackton Ojwang and Njoki Ndung’u of their conduct in 2015.
He replied that JSC members felt the judges had disrespected the commission by sending a letter on September 22, 2015 seeking JSC's intervention to address a contentious issue of quorum hitch at the apex court.
According to Mutunga, JSC felt the quorum issue in the letter was a red herring meant to divert attention from the question whether judges should retire at 70 or 74.
He said the problem with the letter emerged in a paragraph that cautioned JSC not to interfere with Supreme Court operations.
Justice Mutunga said the paragraph must have been written by Supreme Court judge Jackton Ojwang, because the other judges lacked the vigor to express themselves in such sublime writing.
“That last paragraph was penned by Prof Ojwang. I know his language and I saw the paragraph as a threat," Mutunga said.
"When you relate with fellow judges, you get to know about their demeanor and their body language and their expression. If it was Justice Njoki, it would not be such language."
According to the retired CJ, the standoff was escalated by bad blood between JSC and the Supreme Court.
He confessed that dealing with the standoff was painful since on one hand, he felt guilty betraying his colleagues while on the other, JSC expected him to act firmly.
“I was dealing on multiple fronts; as JSC chair, head of Supreme Court and head of Judiciary. It was worse than discomfort,” Mutunga said.
As to how the confidential letter by the judges reached Mr Mboya, Mutunga said it must have been leaked by one of the JSC members.
Apollo filed his complaint, attaching the letter which bore JSC’s stamp. He also attached a Supreme Court working document.
It is a crime for outsiders to have confidential documents from JSC.
It emerged that Justice Njoki was the judge on duty during the week Supreme Court judges had downed their tools.
