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Judges fault Mutunga's directions in petition on retirement age

By Isaiah Lucheli | March 19th 2015

NAIROBI: Two judges have challenged directions issued by Chief Justice Willy Mutunga on retirement age of those serving in the Bench.

In a case in which they have sued the Judicial Service Commission (JSC), Supreme Court Judge Philip Tunoi and High Court Judge David Onyancha argued that the directives issued by the CJ violated their rights and rendered a fair trial difficult to attain and sought to have the directions vacated.

The CJ had last month ordered that the suit challenging the decision by JSC to have judges retire at 70 years be heard by a five-judge Bench on two consecutive dates not later than March 26 this year and the judgment delivered on or before April 30.

The judges argued that the CJ did not have powers to issue such directions under the law other than assigning uneven number of judges to handle a case.

"The Constitution has been contravened by the directions and the petitioners' rights and fundamental freedoms under the bill of rights have been denied, violated, infringed and threatened," their lawyer Fred Ngatia submitted.

He added that all directions relating to the management and timelines of the hearing of the petition can only be made by the judges handling the case as outlined in the Constitution.

When the matter came up for hearing yesterday, High Court judge Luka Kimaru disqualified himself from hearing the suit citing personal issues.

The CJ has since set up a five-judge Bench to hear the petition.

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Justices Tunoi, Onyancha and Leonard Njagi moved to court challenging the requirement that they retire as judges on reaching the age of 70 years instead of an earlier communication that had set the age at 74.

Tunoi and Onyancha, who are both 70, went to court seeking to stop JSC from retiring them.

In their application, the judges argued that they had been appointed under the old Constitution, which had set their retirement age at 74.

JSC had wanted to retire Tunoi on June 3, last year, while Onyancha was set to be retired on December 1 the same year and had already received a retirement letter from the Judiciary.

The Bench hearing the petition include Justices Richard Mwongo, Luka Kimaru, Christine Meoli, Hedwig Ongúdi and Charles Kariuki.

The judges, who got orders restraining JSC from retiring them until the suit they have filed was heard and determined, argued in court that there were two circulars one dated May 24, 2011, from the JSC informing all judges that their retirement age was 74 years.

The judges through their Lawyer had informed the court that another circular dated March 27, 2014, informed judges that a meeting of the JSC determined that retirement age of all judges is 70 years.

The matter will be heard Friday.

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