Three judges told to quit Kalpana Rawal case

Deputy Chief Justice Kalpana Rawal. (Photo: File/Standard)

Three Supreme Court judges have been urged to disqualify themselves from hearing a petition in which Deputy Chief Justice has disputed the age at which she should retire.

The Judicial Service Commission (JSC), the Judiciary and activist Okiyah Omtatah claimed Chief Justice Willy Mutunga, Justice Smokin Wanjala and Justice Njoki Ndungu would not be impartial. Mr Omtatah and the JSC through counsel Charles Kanjama said Dr Mutunga and Dr Wanjala sit on the JSC as corporate members while Justice Njoki has filed an application against her employer, the JSC.

He said it was in the interest of the public that the three disqualify themselves.

However, the judges maintained that the bench has the jurisdiction to listen to the matter before it.

"CJ Dr Mutunga and Justice Wanjala being members of the JSC which has decreed that the judges must retire upon attaining the age of 70 years, cannot preside in their own cause," Omtatah said in his preliminary objection yesterday before the five-judge bench of the Supreme Court.

Omtatah further explained that Justice Jackton Ojwang and Justice 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support of the position taken by Justice Tunoi and Justice Rawal that the retirement age of judges appointed under the repealed Constitution is 74 years and hence would be biased in their decision.

Kanjama said Justice Philip Tunoi and Justice Rawal are litigants who have challenged the decision to retire them at the age 70 years, hence they cannot preside in their own cause.

"My lords, it is my prayer that this court adopts the submissions by Counsel Charles Kanjama, citizen Omtatah, in support of the application before you," said senior Counsel Paul Muite, appearing for the Judiciary.

"This court should seize the opportunity to lay down the law by adopting the jurisdiction of the court of South Africa's cases which cited in authority 9 and 18. That when the apex court finds itself conflicted by whatever reasons, the correct position is to decline to admit to hear the appeal so that judgment of the lower court becomes the final of issues that are before you."

Muite said that when the apex court finds itself conflicted, the correct position is for it to decline to hear the matter and allow the ruling in the lower court, the Court of Appeal to stand. Earlier, the CJ summoned parties to his chambers where they raised concerns over Omtatah's application. It emerged that Justice Mohamed Ibrahim was not part of the bench in the Supreme Court petition that supported Rawal and Tunoi that the retirement age of judges appointed under the repealed constitution is 74 years.

That, therefore, leaves only Justice Ibrahim as the only judge on the bench that has not taken a stand in the matter before the Supreme Court. The JSC, the Judiciary, LSK and the International Commission of Jurists supported Omtatah application while Rawal through and senior counsel John Khaminwa for Kituo cha Sheria opposed.