LSK mediation process in CJ Willy Mutunga and his deputy Kalpana Rawal's dispute hits snag

The stalemate between Chief Justice Willy Mutunga and his deputy Kalpana Rawal persisted yesterday after a mediation process being driven by the Law Society of Kenya (LSK) hit a snag.

Senior counsel Ahmednasir Abdullahi representing the Judicial Service Commission (JSC), John Khaminwa -
Kituo cha Sheria (appearing as friends of the court) and Okiyah Omtatah, who was featuring as an interested party,contested the LSK’s decision in the case in which Rawal has challenged the decision of the Court of Appeal to retire her at 70.

Lawyers Nelson Havi and John Khaminwa leave the Supreme Court yesterday after proceedings on whether two judges of the top court should retire at the age of 70 or 74. (PHOTO: BONIFACE OKENDO/ STANDARD)

 Ahmednasir clashed with fellow senior counsel Paul Muite (representing the JSC secretary), after he described the proposal as lacking substance while Dr Khaminwa argued it was a waste of time. Omtatah questioned the jurisdiction of the five-judge Bench to hear the matter in the first place.

However, Dr Mutunga ruled that JSC, which he chairs, will convene today (2.30pm) to give the mediation process a chance. This was after an appeal by LSK for time to meet the interested parties.

“LSK has asked to meet the individual members of the JSC and lawyers. We have already ordered that JSC meets the lawyers,” Mutunga said in a ruling that was hotly contested by  Khaminwa and Omtatah. “As chair of the JSC, I have convened a meeting and we will meet tomorrow at 2.30pm,” said the CJ.

The court had to postpone its morning session to the afternoon to grant LSK a chance to submit their mediation proposals to the parties before another meeting in the afternoon, where the CJ made the decision to convene the JSC meeting.

The bench comprising Mutunga, Supreme Court judges Njoki Ndung’u, Smokin Wanjala, Jackton Ojwang’ and Mohammed Ibrahim was expected to first hear a notice of preliminary objection filed by Rawal and Tunoi, opposing the CJ’s direction that the inter-parties hearing be held today and not on June 24 as had been ordered by Ndung’u.

On Tuesday, a two-judge bench comprising Wanjala and Ndung’u ordered that all applications be heard yesterday before the five-judge Bench to determine whether the CJ was right in varying Ndung’u’s orders.

Rawal and Tunoi contend that no application had been made in that regard.

They also argue that only a five-judge Bench of the Supreme Court can vary the orders of a Supreme Court judge.

Thereafter, the five-judge Bench was expected to hear submissions on applications filed by the Judiciary and JSC seeking to have Justice Ndung’u’s orders – suspending the Court of Appeal judgement – set aside.

Omtatah’s application was to be heard next. He wants the entire Bench to disqualify itself on grounds that the judges cannot impartially hear the appeal as they have taken sides on the matter.

“That this honourable court has no jurisdiction to entertain the instant application or any other application or appeal filed in respect of the judgement and order of the Court of Appeal in Civil Appeal No. 1 of 2016, delivered on May 27 because all its judges have either supported or opposed the contention that judges appointed under the repealed Constitution should retire upon attaining the age of 70 years,” said Omtatah in a preliminary objection.

He contends that Mutunga and Wanjala – as members of the JSC — are parties to case.

He also contends that Ojwang’, Ndung’u and Ibrahim cannot be impartial as they, in a ruling, opposed the JSC’s retirement of Rawal and Tunoi.

However, when the five-judge Bench met in the morning session, Mutunga, who is also the president of the Supreme Court, called to listen to an application made by the LSK first.

“Can we have the LSK, the representatives of LSK please introduce yourself,” Mutunga said.

Third party

“My Lords, we are seeking a confirmation that the LSK be admitted as a third party, friend of the court,” said LSK lawyer Elias Masika.

However, lawyer Nelson Havi made an application that his client, lawyer Michael Osundwa, had also made an application to be enjoined in the suit. But the CJ ruled that the application be submitted before them and the ruling would be made later.

Ibrahim inquired whether Havi’s client was a member of LSK.

But Havi replied: “Yes, my client is a member of the LSK. But I am not aware of the contents of their application as they are yet to disclose them. We are not sure whether their application represents the interests of my client.”

Ibrahim also asked whether the two applications could be consolidated into one but the parties opposed it. LSK appealed for time outside the court to explore mediation process in the matter.

“Without appearing to pull the rug under the feet of learned counsels, LSK wishes to request that the parties consider as set out in article 159 sub section 3, we have a separate arbitration in this matter,” Masika said.

Kioko Kilukumi for Rawal and Muite for JSC did not oppose the LSK request for mediation, but Ahmednassir and Khaminwa opposed it on grounds that the matter was too weighty to be left to a mediation process.
“I thought LSK has taken a position on this matter. This is not a matter that parties can negotiate in a certain room. The nature of this dispute cannot be decided in a four corner of a room outside court,” Ahmednasir said. “My Lords, the matter before you goes beyond Tunoi and Rawal. A decision is going to affect more than 40 judges of this court. The mediation being proposed would be a waste of time,”  Khaminwa said.

Omtatah too opposed it and gave four conditions upon which he could allow the LSK mediation request.
“The law is seemingly inadequate to resolve this matter. It may be in the interest of all parties to resolve it elsewhere,” he said.