Storm in Judiciary as battle to succeed Chief Justice Willy Mutunga intensifies

Chief Justice Willy Mutunga
The succession race in the Judiciary is shaping up as an all-out war that is threatening to plunge this critical arm of government into disarray.

Yesterday, Supreme Court Judge Kalpana Rawal issued a warning to the Judicial Service Commission (JSC) against a decision to retire her.

Rawal, through her lawyer George Oraro, was categorical that the move to push her out before a case filed by Justice Tunoi is determined, amounts to infringement on her rights.

“We are requesting the JSC to confirm that it has withdrawn the notice pending the determination by the courts of the constitutional matter. Our client will further request the Chief Justice by a copy of this letter that the matter be expedited...in default thereof, our client will have no alternative but to take such action as she deems appropriate,” the letter reads in part.

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The succession machinations have set in play an unfamiliar trend where senior judges are having to seek the intervention of their juniors in a bid to save their jobs.

Supreme court Judge Philip Tunoi is already in court challenging a decision by JSC to retire him, a step Rawal has threatened to take.

Speaking to us on his cell phone, Justice Tunoi accused JSC of disregarding an order of its own court.

“I was shocked to receive a letter informing me that to promote and facilitate the independence of the Judiciary and the efficient, effective, transparent administration of justice and bearing in mind the possible consequence of your continued sitting and pending deficiencies with far reaching consequences, and without in any way anticipating the outcome of your matter, the JSC has decided to exercise care and caution by stopping you from further sitting, hearing and determining any matter henceforth until the dispute is heard and resolved,” Tunoi referred to a letter from JSC as he spoke to The Standard on Saturday on phone.

He regretted that JSC had failed to adhere to the court ruling and has vowed to go back to court next week to seek further orders.

“Mutunga wrote to every affected judge saying that they will not be retired or be removed from office but what has happened to Justice Rawal is an ambush,” Tunoi said.

The succession politics has technically split the High Court, Court of Appeal and Supreme Court judges and Commissioners of JSC right down the middle with alliances forming around Supreme Court Judge Smokin Wanjala and the President of the Court Appeal Kihara Kariuki.

Conversations The Standard on Saturday held with multiple sources among them judges paint a picture of the possibility of a two-horse race pitting Justices Wanjala and Kihara in the race to succeed Chief Justice Willy Mutunga.

Others being mentioned include Supreme Court Judges Jackton Ojwang, Mohammed Ibrahim and Attorney General Githu Muigai although sources close to the AG indicated he could have his eye on being a Supreme Court Judge.

Handlers of Supreme Court Judge Njoki Ndung’u indicated that she has already ruled out participating in a contest for CJ and DCJ positions which are scheduled to become vacant before the end of 2017.

Intriguingly, however, is the role apparently being played by a senior counsel who is also a former commissioner in the JSC. Credible sources indicate that the senior counsel is behind the push to send Rawal on retirement with a plan to replace her with a candidate that can essentially lock out a competitor he believes threatens the survival of his preferred candidate for the position of CJ.

This controversial move is likely to fuel the battle in a case involving Justice Tunoi and the DCJ on the retirement of judges in service before the current Constitution was promulgated. The outcome of this case is critical to the pace and intensity of the succession battle.

The latest move by Rawal happens only a week after another move to recruit 25 Kadhis II which elicited deep protestations within the Judiciary and one that is likely to add fuel to the fire.

Sections of the Judiciary believe the move to hurriedly recruit the said Kadhis, which started last week, could have a big influence on the outcome of the elections of the representative of judges and magistrates in the JSC set for October.

A letter dated August 27 by the JSC and addressed to all commissioners who are members of JSC’s Human Resource Management Committee (HRMC), reads in part, “The Judicial Service Commission (HRMC) will conduct selection interviews for the position of Khadhi II from Monday, 31st August to Friday, September 4th starting from 9am daily. A pre-interview meeting to discuss the modalities will be held on Monday, August 31st, at 8am at the Chief Justice’s board room.”

One of the JSC members said, “This is very suspicious and can only be a scheme to do funny things. Firstly, we do not need this kind of workforce as we speak. Secondly it’s being done in a hurry. The whole process is hugely suspicious.”

Equally controversial is the actual period when Chief Justice is set to retire. Both his identity and passport provide contradictory details of birth. Whereas the identity card show he was born in June 1947, the passport indicates he was born in the June 1946 which would mean he is due to retire in June next year. We obtained copies of both documents.

Jostling is already underway for two positions in the JSC. Commissioner Emily Ominde’s term expires in October while that of Law Society of Kenya female representative Florence Mwangangi in December.

kenya's judiciarychief justice willy mutungakalpana rawal