The confusion in the Judiciary over the retirement age of judges was evident in the Supreme Court Monday morning, during the ruling on an appeal challenging the election of Bomet Senator Wilfred Lesan.
Nick Salat had, through his lawyer Titus Koceyo, questioned the presence of Justice Philip Tunoi as part of the Bench that heard his appeal yet he was over 70 years.
Though Mr Lesan's election was unanimously upheld, the Supreme Court judges differed over the retirement age of judges.
By a majority decision, Justices Jackton Ojwang, Kalpana Rawal, Tunoi and Njoki Ndungu ruled judges aged 70 years cannot be forced to retire, escalating a conflict with the Judicial Service Commission (JSC) that wants them off the Bench.
The judges found that JSC "lacks the competence to determine when a judge may perform their judicial duty."
But Chief Justice Willy Mutunga, who is also the President of the Court and Chairman of the JSC, dissented noting that there was no case surrounding the age question before that court.
The dispute on whether judges should retire at 70 or 74 years has sparked controversy within the Judiciary because it has implications on the composition of the Supreme Court, which is the final arbiter and interpreter of the Constitution.
Two of the Supreme Court judges – Deputy Chief Justice Kalpana Rawal and Judge Phillip Tunoi – are fighting the decision by JSC to retire them at 70.
With CJ Mutunga promising to retire in six months, the Supreme Court is left with Justices Njoki Ndungu, Jackton Ojwang, Mohammed Ibrahim and Smokin Wanjala.
But the crisis is compounded further by the fact that justices Ndung'u, Ojwang and Ibrahim are faced with a petition for their removal from office lodged before the JSC by the Law Society of Kenya (LSK) that accuses them of a work boycott. The judges have denied being on a go-slow.
The petition arose from protests by the Supreme Court judges accusing the JSC of meddling in the court's affairs, including the directive to retire judges aged over 70 years.
And Monday, four out of five judges held that JSC cannot meddle in judges' affairs.
Justices Ojwang, Ndung'u, Tunoi and Rawal turned the Bomet County senatorial seat case into a debate on judges' retirement with a pronouncement that the 74-years age bracket that had been put in place by the old constitution is inalienable.
But while the ruling was signed by the five, only Mutunga, Ojwang and Ndung'u were present in the courtroom Monday when it was read out. The four judges held that the retirement question was not negotiable and could not be altered by any body.
The words used in the majority finding were the tenure for all judges was sacrosanct and not amenable, meaning that it could be regarded as too important or valuable to be interfered with.
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"This court takes the position that the security of tenure for all judges under the Constitution of Kenya, 2010, is sacrosanct and is not amenable to variation by any person or agency, such as the Judicial Service Commission, which has no supervisory power over judges in their conduct of their judicial mandate," justices Ojwang, Tunoi, Rawal and Njoki held.
Mutunga dissented, arguing that the highest court in the land could not make a finding on cases that were ongoing in the lower courts.
The emotive issue that has now split the Supreme Court was brought through a letter to the CJ and the registrar of the Supreme Court, indicating that the composition of the bench was to be compromised by the retirement question.
"With greatest and profound respect to my learned sisters and brothers, my very humble opinion is the contents of the said letter should neither have been treated as a part of proceedings in this appeal nor been the basis for comment, holding and finding in the judgement," Mutunga ruled.
JSC gave Rawal a notice for retirement on September 1, 2015, requiring her to retire at the age of 70 years.
Similarly, Tunoi was also required to retire at the same age, alongside High Court judges David Onyancha and Leonard Njagi.
Moreover, judges who have already attained 70 years were required not to handle any cases as they awaited the final verdict on the age question.
"In order to forestall any likely constitutional crisis that may arise as a result of judges serving beyond their mandatory age, it was resolved that the respective judges will not hear and participate in any further proceedings until the case that they filed is heard and determined," the notice by JSC's secretary, who is also the Chief Registrar of the Judiciary, Ann Amadi, read in part.
The decision by JSC was backed by the Law Society of Kenya, with a directive that lawyers should boycott attending court sessions before the affected judges.
The four judges – Rawal, Tunoi, Njagi and Onyancha – contested the decision before High Court and the cases have been ongoing.
The issue on whether the judges should retire when they clock 70 or 74 years also touches on 40 other senior judges who were appointed into office under Kenya's old law.
The Supreme Court's decisions throw the whole issue into limbo as it is binding on all other lower courts in the country.
Monday's decision can be said to be the prevailing one as the majority agreed that JSC had no powers to determine as to when and how a judge can sit.
However, justices Rawal and Tunoi were a part of the majority though the stalemate surrounded their tenure.
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