Rawal seeks to reverse CJ Willy Mutunga's directive on her retirement case

Deputy Chief Justice Kalpal Rawal. PHOTO: FILE

NAIROBI: Deputy Chief Justice Kalpana Rawal yesterday moved to challenge Chief Justice Willy Mutunga’s directive over her retirement suit.

Dr Mutunga, who is also the President of the Supreme Court, had just issued new orders to save the highest court in the land from an impending crisis.

The CJ reviewed the orders by Supreme Court Judge Njoki Ndung’u. Justice Ndung’u’s on Friday last week set the hearing date of an appeal by Rawal and Justice Philip Tunoi on June 24, and directed that the matter be heard on Thursday.

Yesterday was marked by applications and counter-applications by interested parties in the judicial saga.

The Judicial Service Commission (JSC) filed an application to vacate the orders given by Justice Ndung’u.

Last Friday, Justice Ndung’u stayed orders by the Court of Appeal, dismissing an appeal by Rawal and Justice Philip Tunoi, who were challenging the JSC’s decision to retire them at 70 years.

She sparked confusion after she fixed the hearing of the appeal by the two on June 24, a time when Mutunga will have retired.

Mutunga is expected to leave office on June 16.

The orders by Ndung’u appeared to create a crisis, given that it would be impossible for the Supreme Court to raise the constitutionally stipulated bench of a minimum of five judges to hear the appeal.

Mutunga reviewed the orders by Justice Ndung’u and directed that the Appeal be heard on Thursday.

“I have perused the orders in this application by Njoki on May 27, 2016. Granted the urgency under which the hearing of the application was sought and the public interest in this application, I hereby invoke my administrative powers as the Chief Justice and the President of the Supreme Court to fast-track the hearing of the application,” the CJ said.

He added: “My directions are, therefore, as follows: The Registrar of the Supreme Court serves the parties to appear for the hearing of the application inter-parties before a five-judge bench of the Supreme Court on Thursday June 2, 2016 at 10am. The registrar also serves the parties with the notice to appear for directions tomorrow May 31, 2016 at 10am before Wanjala and Njoki.”

Ms Rawal, however, moved with speed and filed an application objecting to Mutunga’s directions, accusing him  of illegally taking up the matter.

According to the DCJ, Mutunga’s administrative powers cannot override judicial decisions. She said the CJ had no powers to single-handedly review orders from the same court.

“The Chief Justice has today issued illegal and unlawful directions. He purports to tap his power to issue those directions from a nebulous source described as administrative power as the Chief Justice and the President of the Supreme Court without quoting chapter and the verse conferring the CJ with such powers. Needless to state, no administrative powers can be cited to override a judicial decision.”

“The Chief Justice had no legal powers and authority to single-handedly vary an order issued by any judge of the Supreme Court under section 24(1) of the Supreme Court Act 2011,” Rawal stated in her application filed by lawyer Kioko Kilukumi.

Rawal stated that Mutunga’s intervention was a calculated move to ensure that she does not get a fair hearing and it allegedly amounted to interference of the independence of judges at the highest court in the land.

CIRCUS COMPLICATED

“The Chief Justice has acted contrary to the Constitution of Kenya 2010 in interfering with the independence of judges of the Supreme Court. The interference is calculated and designed to undermine and completely erode the applicant’s constitutional right to a fair hearing in violation of article 50 of the Constitution,” Rawal protested.

The circus was complicated by yet another application made by the JSC seeking to lift the orders by Ndung’u. JSC argues that Ndung’u was not the duty judge when she took up the matter and gave the orders.

According to JSC, Justice Mohamed Ibrahim ought to have heard the matter instead.

JSC’s lawyer Issa Mansur also argued that Rawal never served a notice of appeal and she never annexed in her appeal a copy of the judgment by the Court of Appeal as court procedures dictate.

“The stay orders issued on May 27, 2016 are illegal and against the Constitution,” the application read in part.

In quick rejoinder, lawyer Apollo Mboya renewed his bid to remove Ndung’u from office over alleged misconduct.

Mr Mboya states in his petition before JSC that Ndung’u placed herself in a position of self conflict as she made orders touching on the case when delivering judgment on Kanu Secretary General Nick Salat’s appeal.

In addition Isaac Madubwi, an activist, filed another petition to remove the CJ from office due to his orders yesterday.

“The overall effect of the conduct of Willy Mutunga has been to bring dishonour to the office of the Chief Justice and the President of the Supreme Court and to erode the public’s confidence in the Judiciary. It is therefore my submission that the office of the Chief Justice has become untenable,” Mr Madubwi stated in his application filed before the JSC.