The Supreme Court will on Tuesday next week rule whether it has jurisdiction to determine Deputy Chief Justice Kaplana Rawal and Justice Philip Tunoi’s application to stay in office.
Activist Okiyah Omtatah had called on judges hearing the case in which Justices Rawal and Tunoi have disputed the retirement age of judges to withdraw.
The decision to grant a ruling for all the three preliminary applications was arrived at after Tunoi, through Counsel Pheroze Nowrejee, demanded that the bench makes a ruling on Mr Omtatah’s case first.
Yesterday, Chief Justice Willy Mutunga adjourned the proceedings in the afternoon to allow the bench to arrive at a decision.
“We have considered proposals by Senior Counsel Pheroze launched in this court that this court determines whether it has jurisdiction in a preliminary objection filled by Omtatah,” Dr Mutunga said.
“Upon considering the merits of this case, we direct that the court will determine preliminary objection by Omtatah to have the judges to disqualify themselves, application no 11 and application no 12 on Tuesday at 2.30pm.”
Omtatah, the Judicial Service Commission (JSC), and the Judiciary claimed that the three judges, including Mutunga, Justices Smokin Wanjala and Njoki Ndung’u would not be impartial.
Omtatah and the JSC, through Counsel Charles Kanjama, aver that the CJ and Dr Wanjala sit on the JSC as corporate members while Lady Justice Njoki has filed an application against her employer, the JSC.
Omtatah further explained that Justices Jacton Ojwang and Njoki were part of the bench which expressed itself in the Tunoi and Rawal matter hence would be biased in their decision.
“Members of this bench have held divergent views on this matter. I have a doubt as to whether the judges are biased. This requires automatic disqualification in such a case and can therefore not be expected to be impartial in one way or another,” Omtatah argued.
In the other application, Rawal and Tunoi are contesting a decision by the CJ to vary the date of the hearing from June 24 to June 2. They are also contesting the decision by the Court of Appeal to send them home.
Should the Court determine that the bench does not have jurisdiction, then the matter will collapse. But should it rule that they have jurisdiction, then the Supreme Court will have to hear Rawal and Tunoi’s applications.
