Court is crippled, judges say in their final decision

A three-judge Supreme Court bench Thursday sent Deputy Chief Justice Kalpana Rawal and judge Philip Tunoi into retirement.

The judges made the final decision to retire their two colleagues as Justice Tunoi's lawyer, Pheroze Nowrojee, protested.

In a ruling that took less than five minutes, Chief Justice Willy Mutunga said the bench lacked quorum to hear such an appeal.

And with that, the judges upheld the decision of the court that a five-judge bench had delivered on Tuesday.

Coupled with Thursday's decision by the Judicial Service Commission to advertise their jobs, the Supreme Court dashed the hopes of the two senior judges from having their matter ever heard in court again.

"This court would like to out-rightly state that having delivered its ruling in the manner it did, it is constrained to determine the application for stay on its merit," said Dr Mutunga who was accompanied by justices Ibrahim Mohamed and Smokin Wanjala.

"First, the court observes that upon delivery of its decision culminating in the orders vacating the ex-parte orders, it became functus officio," said Mutanga.

He added: "Second, three judges of this bench having recused and/or disqualified themselves from further hearing this matter, there was no competent court before which the application could be properly made. The matter ends there."

But as soon as he delivered the verdict, Mr Nowrojee rose to his feet and raised concern that JSC who is the respondent in the matter had already advertised the positions for both Rawal and Tunoi.

But his voice was drowned in noise and confusion as the bench rose to leave.

"My Lords, I would like to bring to your attention what has happened about the advertisement by JSC," said Nowrojee, but the judges did not pay attention to what he was saying, and left.

Lower court ruling

Mutunga, Wanjala and Ibrahim disqualified themselves from ruling on the matter and thereby by a majority upheld the decision of the Court of Appeal that ruled the two judges be retired at 70.

However, the other two judges Njoki Ndung'u and Jackton Ojwang, who Thursday were conspicuously absent, gave a different view from their colleagues.

"The effect of my recusal will no doubt affect the capacity of this court to raise a quorum. The effect of the inability of the Supreme Court to entertain the intended appeal is that the decision of the Court of Appeal, to the effect that all judges must retire upon attaining the age of 70 stands, until it is affirmed or reversed by a properly constituted bench of the Supreme Court," said Wanjala on Tuesday.

He added: "By the same token, the ex parte orders issued on May 27 must lapse with this recusal because the bench on whose behalf the orders were issued is no longer in existence. The said orders cannot exist in futility."

But as soon as the five judges delivered their ruling, Tunoi made an application that Rawal supported.