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Judges withdraw from Kalpana Rawal case after age queries

By Kamau Muthoni | December 29th 2015

Two judges who were to hear the retirement age appeal filed by Deputy Chief Justice Kalpana Rawal withdrew from hearing the case Monday.

Justices Festus Azangalala and GB Kariuki opted out of the case after the issue of their ages was raised.

Their departure left the three-member bench with only Justice Fatuma Sichale after arguments were raised on account that the retirement stalemate would in turn catch up with the judges as they are also almost attaining 70 years.

The move raises another storm in the Judiciary's succession battle as they had been appointed through the old law, pitting the judges who were appointed in the previous constitution against the ones who joined the Judiciary under the new dispensation.

The case will have to be heard by judges that were sworn into office under the 2010 Constitution as they are not affected.

Justice Sichale was first to read her ruling and she said there might be an issue of impartiality, but did not ask them to walk out of the case. "I leave it to their individual conscience," she ruled.

Justices Azangalala and Kariuki on the other hand ruled that they would not be in the bench that will hear Rawal's case into conclusion and further directed that the President of the Court of Appeal should constitute another one.

The development has now left judges Phillip Tunoi and David Onyancha at the mercy of the Judiciary as the 14 days provided by the court to appeal have already expired.

The High Court had given the three judges a 14-day period amnesty, after which temporary orders shielding them from being served with the retirement notice would lapse.

It is unclear when the bench will be constituted, thus Rawal also risks the same fate as the other two judges (Tunoi and Onyancha) come January when she attains the age of 70 years.

Tunoi, 71, was set to retire on June 3, last year, while Onyancha, who turned 72 in November, had been expected to exit at the same time.

The age question is said to be touching 16 other judges.

The application for the recusal motion was moved by activist Okiya Omtata and supported by the Judicial Service Commission, of which they argued the judges would not give a fair verdict knowing that they too were in the same basket.

"The two judges will soon be turning 70 years and thus they will be presiding their own cases. The two had prior knowledge of the case and will in turn be affected by the same," the judges were told.

The application to have the judgement by the High Court stayed until the case is heard and determined will be heard once the new bench will be constituted.

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