Supreme Court moves to save Rawal and Tunoi hours after Court of Appeal sends them home

L-R supreme court judges Patrick Kiage GBM Kariuki, Jamilla Mohammed and Otieno Odek during the ruling on JSC retirement age, 27/5/2016 PHOTO BY GEORGE NJUNGE

Deputy Chief Justice Kaplana Rawal and Supreme Court judge Phillip Tunoi were yesterday saved from going home after Kenya’s highest court suspended a decision made by the Court of Appeal.

Hours after the Court of Appeal ruled that Rawal and Tunoi ought to retire at 70, Supreme Court’s Justice Njoki Ndung’u issued orders that they remain in office pending hearing and determination of her (Rawal’s) appeal in the Supreme Court.

The ruling stopped the Judicial Service Commission (JSC) from advertising Rawal’s position and ordered that the recruitment should not be commenced.

“Pending the hearing inter-parties of the application, a conservatory order is hereby issued directing that the decision of the High Court affirmed by the Court of Appeal today May 27, 2016 to the effect that the retirement age of judges pointed before August 27, 2010 is 70 years be suspended,” the judge ruled.

In an application filed by lawyer Kioko Kilukumi, Rawal argued that the court would not be properly constituted due to the suspension of judge Phillip Tunoi and the fact that Chief Justice Willy Mutunga is due to retire next month.

The Deputy Chief Justice argued that the law requires that no other person other than herself should occupy the CJ’s office for a period of six months when the recruitment process is being conducted.

“I am aware that in the event of vacancy in the office of CJ, the law requires the Deputy Chief Justice, and no other person, to act as the CJ for a maximum period of six months,” she said in the application.

“I verily believe that it is important to preserve the subject matter of the appeal, so as to firstly ensure the substratum of the appeal does not disappear during its pendency and secondly to uphold the adjudicatory authority of the court, hence my seeking of the orders.”

JSC lawyers’ frantic efforts to have audience to oppose the orders were in vain.

Rawal was the first to file her appeal at around 1:00 pm, followed by Tunoi at 3:00 pm.

Lawyer Issa Mansur, defending JSC in the Tunoi case, had already written to the deputy registrar of the Supreme Court notifying her that JSC was opposed to any orders being granted without their presence. This letter was received at the Supreme Court registry at 2:00 pm, one hour before Tunoi filed the application.

On the other hand, lawyer Charles Kanjama, for JSC in the Rawal case, also had his letter protesting that no orders should be issued. The pleas, however, fell on deaf ears.

The lawyers camped at the Supreme Court hoping to get audience, but their presence did not help either.

Sources at the Judiciary told The Standard on Saturday CJ Mutunga had asked that the two files be taken to him. The applications will be heard on June 27. Interestingly, Mutunga will have already exited as he has previously confirmed he would leave office on June 16.

Yesterday, Court of Appeal judges GBM Kariuki, Patrick Kiage, William Ouko, James Otieno Odek, Jamila Mohammed, Milton Mahandia and Kathurima M’Inoti ruled that the High Court did not err by holding that judges who took oath of office under the 2010 constitution ought to have retired at 70 years.

Spirited fight

In their ruling, the judges declared that Rawal and Tunoi should retire at 70 and not 74 as they had argued. “The High Court did not err when it ruled that the constitution did not reserve the retirement age of judges who served in the former constitution. The retirement of judges is 70 years and for this reason the appeal is dismissed,” the court ruled .

Rawal has been in the Judiciary for 16 years while Justice Tunoi has served for 29 years. She joined the Judiciary as a High Court judge in 2000 and was appointed Deputy Chief Justice in 2013 to replace Nancy Baraza, who resigned in 2013 following a storm over her altercation with a security guard at a shopping mall in Nairobi.

Justice Tunoi joined the Judiciary in 1987. Rawal clocked 70 on January 29, 2015 whereas Tunoi is 72 years.

Although JSC had given the two judges a promise of not kicking them out of office in April 2011, it changed its stand in 2014.

Rawal put up a spirited argument that she never agreed to retire at 70 years when she was interviewed by JSC on February 2013. Her expectations, she argued in court, was to be in office for four more years without disruption.

Tunoi argued that the retirement notice was discriminatory as they had a guarantee of service until the end as provided under Kenya’s old laws.

But the seven appellate judges ruled that the promise itself was not binding under the law, as the constitution was clear that the retirement age for judges had been reduced by four years.

“Was there a promise to serve until the age of 74? The decision by JSC was due to diverse interpretation and thus could not be conclusive. JSC could not make a binding promise as the retirement age is contained in the constitution,” the judges ruled.

The judgement had marked the end of the probe on the Sh200 million bribery allegations against Tunoi by Geoffrey Kiplagat as the law dictates that a tribunal can only investigate a sitting judge.

 

Justices Jackton Ojwang, Mohamed Ibrahim and Njoki had already made a ruling that judges should not be forced out of office at the age of 70. It now remains to see who will hear the appeals.