NAIROBI, KENYA: Two Judges who were retired after attaining the age of 70 years will continue to serve in the judiciary until their case is determined.
Justice George Odunga on Monday directed that the Judges will remain in office until their case in which they are challenging their retirement is finalised.
The judge also ordered the Judicial Service Commission to respond to the suit and appear in court for the hearing of the case on June 19.
Supreme Court Judge Justice Philip Tunoi and High Court Judge David Onyancha want a declaration that retirement age for all judges be 74 years instead of 70 years.
The judges want the court to prohibit the JSC or the Judiciary from removing them from office.
The judges argued in court that there are two circulars one dated May 24, 2011 from the JSC informing all judges that their retirement age was 74 years.
The judges through their Lawyer Fred Ngatia further informed the court that another circular dated March 27, 2014 informed judges that a meeting of the JSC determined that retirement age of all judges is 70 years.
The judges told Justice George Odunga that when the second circular was released, the previous circular was not annulled.
“No effort was made to revoke the first circular and hence the two circulars are contradictory and impossible to reconcile,” said Ngatia.
Ngatia added that it was due to such conflicting decisions that it was necessary for the court to adjudicate which decision is in accord with the law.
Justice Tunoi said he received a letter from Judiciary on April 28 informing him that he should retire on June 3.
Onyancha told the court that he attained the age of 70 last December.
“Upon receiving the letter, I instructed my lawyer to propose to the JSC that the dispute be referred to mediation instead of the court process. To date the JSC has not responded to his request,”Tunoi said through his lawyer.
The duo wants a resolution of the JSC made on March 24 that the retirement for all judges is 70 years and accordingly all judges who are due for retirement having attained the stated retirement age will be issued with notice of retirement be quashed.
They also prayed the court to quash decision and letter from the judiciary retiring them.
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