Why Justice Tunoi wants judge to disqualify himself in retirement age case

Hearing of Justice Phillip Tunoi's appeal on his retirement age stalled after he applied to have the judge presiding over it to disqualify himself.

It took close to three hours, first in a closed-door session then an open court for a seven-judge bench to allow for Justice Tunoi's lawyers Fred Ngatia and Pheroze Nowrojee to make an application for an adjournment on the basis that Judge GBM Kariuki cannot sit due to conflict of interest.

It happens that Justice Tunoi, in 1994, had slapped Judge Kairuki with a Sh500,000 fine for contempt of court and he says he will not be fair to him if he is allowed to sit and determine the case.

The case was placed before a seven-judge bench composed of judges Justices GBM Kariuki, Otieno Odek, Patrick Kiage, William Ouko, Jamilla Mohammed, Kathurima M'Inoti and Milton Makhandia.

"We have instructions from our client to make a formal application for the presiding judge to recuse himself from hearing the case for Justice Tunoi was in a bench that fined him Sh500 000 for contempt of court," the judges were told yesterday.

The application by the 72-year-old judge however faced opposition from Judicial Service Commission, which argued that 22 years have since passed and thus Justice Kariuki 's presence has no conflicting interests to the case.

Dismissing the request, lawyer Paul Muite, said Justice Tunoi knew that the judge was sitting from the first day of the case and thus the application was allegedly meant to waste court's time.

"There are six judges in the case and a lone judge cannot influence their decision," the senior lawyer argued.

The seven judges pushed the hearing of the case to Monday 15.