Deputy CJ Kalpana Rawal and judge Philip Tunoi face their colleagues in Judiciary duel

Supreme court judges L-R Njoki Ndungu,Jackton Ojwang,C.J Willy Mutunga,Mohamed Ibrahim and Smokin Wanjala during the hearing retirement age for judges at the supreme court. 2/5/2016 PHOTO BY GEORGE NJUNGE

 

The fate of two Supreme Court judges who have refused to retire at 70, now rests in the hands of five of their colleagues. The team led by Chief Justice Willy Mutunga will from tomorrow begin hearings into the appeal filed by Deputy Chief Justice Kalpana Rawal and Judge Philip Tunoi, following collapse of mediation talks. At the centre of it all is whether the conservatory orders granted by Judge Njoki Ndung’u suspending the Court of Appeal decision, should stand. Activist Okiya Omtata has also applied for the entire bench to disqualify itself on account of conflict of interest. The judge’s employer, the Judicial Service Commission has stood its ground that the conservatory order should be lifted and that the pair should retire immediately.

“JSC’s stand is that the High Court and the Court of Appeal have made a decision that judges should retire at 70. We still have the judgments to that effect and thus will argue that the orders by Justice Njoki Ndung’u should be set aside,” JSC lawyer Isa Mansour told The Standard on Sunday.

If JSC, whose two members - Mutunga and Judge Smokin Wanjala are sitting on the bench - have its way on the matter of conservatory order, Rawal and Tunoi will have to leave the Judiciary. The move will also knock off Rawal’s chances of succeeding Mutunga when he retires in a week’s time. If the conservatory order is upheld however, Rawal stands high chances of becoming acting president of Supreme Court and chair of JSC.

If Omtata succeeds in getting the entire judge to recuse itself from hearing the matter, the case will most possibly hang in a limbo until new judges come in, the two judges agree to retire or until they reach their desired age of 74.