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The Nairobian

Highest court to rule on DCJ Kalpana Rawal's case

Nairobi

By Luke Anami | Jun 13, 2016

The Supreme Court will Tuesday afternoon rule on retirement dispute involving two judges.

The Supreme Court will determine whether it has jurisdiction to entertain Deputy Justice Kalpana Rawal and Justice Philip Tunoi’s application to stay on as judges.

Activist Okiyah Omtatah had called on the judges who have participated in this matter in one way or another to disqualify themselves from the case. The two Supreme Court judges dispute the age at which they should retire. The judges want to retire at 74, not 70 years as stipulated in the Constitution.

Justice Tunoi, through lawyer Pheroze Nowrojee, asked the bench to rule on Mr Omtatah’s case before they could proceed. On Friday, Chief Justice Willy Mutunga promised to rule on the jurisdiction issue.

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“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,” said Dr Mutunga.

Omtatah, the Judicial Service Commission, and the Judiciary claimed Mutunga, Justice Smokin Wanjala and Lady Justice Njoki Ndungu would not be impartial in the matter. Omtatah said the first two sit on the JSC as corporate members while Njoki had filed an application against JSC.

Omtatah said Justice Jacton Ojwang and Njoki were part of the bench which, in Supreme Court Petition No. 23 of 2014, expressed itself in support of the position taken by Justice Tunoi and Justice Rawal that the retirement age of judges appointed under the repealed Constitution is 74 years and hence would be biased in their decision making.