Epic legal battle as Chief Justice Willy Mutunga to face off with his deputy Kalpana Rawal

Judiciary boss Willy Mutunga with his deputy Kalpana Rawal. A showdown looms between the two as the drama that the Kenya Judiciary has become plays out in public. (PHOTO: COURTESY)

A showdown looms between Chief Justice Willy Mutunga and his deputy, Kalpana Rawal, as the drama that the Kenya Judiciary has become plays out in public.

Two Supreme Court judges yesterday directed that an application that Justice Rawal had filed to challenge her boss’ decision to alter dates to hear her appeal on her retirement age be heard tomorrow.

Judges Smokin Wanjala and Njoki Ndung’u ruled that the preliminary objection questioning the decision by the CJ to overturn a ruling made by another judge of the Supreme Court will be heard first tomorrow morning before a five-judge Bench.

“We will meet on Thursday morning at 10am. It appears we will have to deal with the preliminary objection first, then deal with the application, that will be the order of the day,” Justice Wanjala said.

Rawal has challenged the decision by Mutunga to exercise ‘his administrative’ powers to alter the hearing dates for an appeal she has lodged against the ruling of the Court of Appeal.

Last week, Rawal and Justice Philip Tunoi, also a Supreme Court judge, moved to the highest court in the land after they lost an appeal against an order to have them retire at the age of 70. At the Supreme Court, Justice Ndung’u granted Rawal stay orders against the Court of Appeal ruling and directed that the appeal be heard on June 24.

The move by Ndung’u caused a furore as it meant that the appeal would be heard after the CJ leaves office, raising questions as to whether the court would then be able to constitute a bench of five as required by law, to hear the appeal. Mutunga is set to retire in two weeks.

In a move seen as his attempt to save the situation, Mutunga on Monday reviewed the orders by Ndung’u and fixed the hearing date for the appeal to tomorrow.

He further directed that the appeal would be heard by himself, Mohammed Ibrahim, Jackton Ojwang’, Smokin Wanjala and Ndung’u.

 LSK application

But before the ink could dry on the CJ’s directive, Rawal through her lawyer Kioko Kilukumi challenged Mutunga’s decision, terming it illegal as the CJ “has no powers under the Supreme Court Act to single-handedly vary a ruling by a judge of the same court”. “It is my prayer to question whether the CJ had any powers, first, to constitute a two-judge Bench and secondly, to vary an order by a judge of the Supreme Court. That should be the question to be determined by this court,” Rawal argued, setting up an epic legal battle.

The two will now face off when the matter comes before the Supreme Court tomorrow.

Yesterday, Wanjala and Ndung’u also ruled that the Law Society of Kenya’s application to be enjoined in the suit as a friend of the court also be heard tomorrow.

Kilukumi had earlier opposed the LSK application, questioning why they were now interested in the matter.

“The LSK were always in Kenya when the proceedings were in court. They never saw a reason to be enjoined,” argued Kilukumi.

But the LSK defended their move, saying they had a mandate as the matter was of public interest.

Senior Counsel Paul Muite, representing the Judicial Service Commission, and lawyer Kimani Kiragu for Tunoi did not object to the LSK’s application.

However, activist Okiya Omtatah threw a spanner in the works when he told the judges that he had made an application to have the Supreme Court judges disqualify themselves from hearing the age matter as they had taken sides.

“My Lords, I had made an application seeking to have the Supreme Court judges disqualify themselves from this matter because they have taken a stand. This will allow the decision of the Court of Appeal to stand,” said Omtatah. “The Supreme Court as currently constituted has no jurisdiction to entertain this matter,” he added. But Wanjala ruled that the matter was not yet before the court and asked him to ensure the process of having the application heard is completed. “Your application is not yet before us. You will have to serve the application to all parties,” said Wanjala.

There was drama when a man who only introduced himself by first name Kevin walked in and began to address the court. He was cut short by Wanjala: “This is a court of law and it has rules of operation. You cannot walk in and start addressing the court in that manner.”