Justice Mohamed Ibrahim's statement on retirement of Supreme Court Judges

Supreme Court Judge Mohamed Ibrahim during the hearing retirement age for judges at the supreme court. (PHOTO: GEORGE NJUNGE/ STANDARD)

The genesis of these matters now before the court is the judgements of the Court of Appeal in Civil Appeal No. 1 of 2016, Justice Kalpana H. Rawal vs Judicial Service Commission & four others; and Civil Appeal No. 6 of 2016, Justice Philip K. Tunoi & another vs Judicial Service Commission & another.

The Court of Appeal delivered its judgements on May 27, 2016, in which it dismissed the two appeals with the consequence that it affirmed the High Court decision to the effect that the retirement age for judges appointed under the old Constitution is 70 years.

The Chief Justice's directions caused the matter to be mentioned before a two-judge bench on May 31, 2016, and brought forward the inter-partes hearing of the two applications from June 24 to June 2, 2016.

These directions by the Chief Justice aggrieved the applicants in both applications for what they termed as interference by the Chief Justice with the judicial orders of a single judge of the court. Hence two preliminary objections were filed against the directions by the Chief Justice.

On May 31, 2016, a citizen of the Republic of Kenya, Mr Okiya Omtatah, who had participated in this matter in the High Court as an interested party, filed a preliminary objection in this Civil Application No. 11 of 2016 dated May 30, 2016.

Omtatah contends that each and every judge on this bench has a conflict of interest and in law we cannot hear the matter as at one time or the other, we had formed an opinion on the main question in controversy which forms the crux of the intended appeal: whether judges appointed before the Constitution 2010 ought to retire at the age of 70 or 74 years.

As a judge of the Supreme Court, I have considered and I firmly believe that I should be guided by my oath of office... It is my solemn belief that the right thing for me to do therefore, which I hereby do, is to invoke my oath of office.

As a result, and with a heavy heart, I hold that not only am I disqualified by conflict of interest in this matter, but I am also under a duty to recuse myself from sitting in any proceedings in this matter.
And I hereby do so.

It is therefore my view that all applications and preliminary objections or any other matter which comes before this court arising from the intended appeal be heard by a bench excluding myself.