Judicial Service Commission (JSC) battles to save top court

Chief Justice Willy Mutunga (centre) and senators after a meeting yesterday. (PHOTO: DAVID GICHURU/ STANDARD)

positions. Deputy Chief Justice Kalpana Rawal and the Supreme Court judge Philip Tunoi will approach the court today knowing very well they are already out of a job.

Chief Justice Willy Mutunga is expected to make a ruling this morning on the application by the two judges that Tuesday night’s rulings be placed in abeyance to allow a new Bench to be constituted to hear their appeals.

But it may be futile effort as the Judiciary has already gazetted that their positions are vacant, and at the same time advertised for their replacement.

A special Gazette notice announcing the vacancies and the advertisement was clear indication that the tenure of the two senior judges may not be redeemed by Dr Mutunga in his ruling today.

Retirement letters

The Judiciary formally announced replacements for Mutunga, Rawal and Judge Tunoi, meaning they are exiting for retirement.

A person who will take up the position of the CJ, according to the advert, ought to have 15 years experience as a judge of a superior court, a university lecturer or a practising lawyer.

The same qualifications apply for the deputy CJ and the applications must be received by July 7.

“Pursuant to Section 3, Part II, First Schedule of the Judicial Service Act, No. 1 of 2011 the Judiciary declares one (1) vacancy in the Office of Judge of the Supreme of Court of Kenya,” the advertisement for Tunoi’s position read in part.

The move by the Judiciary to end Tunoi’s career will spell a natural death for the tribunal investigating him. Judge Tunoi will have retired and thus as per the law, a tribunal cannot sit to investigate him.

Yesterday, The Standard learnt that letters for retirement were ready for delivery to Tunoi and Rawal, meaning they would exit at the same time as Mutunga.

The letters were written by the Chief Registrar of the Judiciary (CRJ) Ann Amadi, a day after the Supreme Court delivered its verdict.

“The letters are in the process of being delivered. The letters were issued by Ann Amadi, CRJ and Secretary to JSC,” Judiciary’s Public Affairs and Communication Director Naim Bilal confirmed.

If the majority order was to be put on hold, then Rawal would automatically succeed Mutunga on acting capacity for 21 days as the law requires.

Lawyers Waweru Gatonye and Pheroze Nowrojee for the two judges, immediately after the CJ and judges Mohamed Ibrahim and Smokin Wanjala disqualified themselves and lifted judge Njoki Ndung’u orders, asked the five-judge Bench to reserve the final ruling, meaning that the orders of the Court of Appeal could not take effect but the dice is already cast.

Mr Nowrojee asked the court to stay the orders for at least 21 days, as he believed his client, Justice Tunoi, had an arguable case.

“I apply for stay of the orders for 21 days. There is an arguable appeal that could be affirmed and reapplied once the Bench is reconstituted. If the stay is not issued, the applicant’s steps may become nugatory. Once the orders are vacated, JSC will take certain steps which will make the application nugatory,” he argued.

He said the court had ruled that the two applications by the judges had not yet been determined and thus they would remain hanging to the detriment of the judges in question.

Justice Rawal’s lawyer, Mr Gatonye, said the court should preserve its orders.

Lawyer Paul Muite opposed the application, saying it was unclear what Tunoi and Rawal shoukld expect in the next 21 days.

“It is unlikely that the appeals will be rendered nugatory because damages will be a remedy. We will simply be paying the balance of what will be remaining. It does not have to be MR X and Ms Y must be a judge in the Supreme Court,” he submitted.

On the other hand, lawyer Ahmednasir Abdullahi submitted that there were no orders to preserve, adding that Rawal was ‘holding the country hostage.’ He asked the court to dismiss the application.