Intrigues in Supreme Court play out as fate of two Kenyan judges 'sealed'
By Luke Anami
| June 16th 2016
Intrigues surrounding the succession of Chief Justice Willy Mutunga who retires today played out during a six-hour Supreme Court ruling on retirement age of judges.
While the final orders upheld the decision of the Court of Appeal to have Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi retire at 70, it did not constitute a finality on the matter.
Justices Smokin Wanjala and Mohamed Ibrahim, in separate rulings, held a majority opinion that seemed to read from the same script as the CJ while two others – Justice Jackton Ojwang and Justice Njoki Ndung'u – differed with their colleagues.
They five-judge bench, by majority held the decision that there is no determination in the matter as Mutunga, Wanjala and Ibrahim disqualified themselves from the case, implying that until a new bench is in place, there is no determination in sight.
This implied that the DCJ Rawal would not act as CJ, not even for a single day. Dr Mutunga would not have the chance to hand over to his deputy who has contested the decision to retire at 70.
It also means Justice Tunoi, who was the senior-most judge of the Supreme Court after Dr Mutunga and Rawal would also not be in a position to act as CJ.
The Law Society of Kenya (LSK) blamed the court for failing to listen to its advice.
"We did not want this matter to reach to this level. That is why as LSK we sought to arbitrate and have this matter settled out of court. This was one way in which we could have saved the face of the Supreme Court," said Isaac Okero, the President of the LSK soon after the verdict was delivered on Tuesday.
In the first application by activist Okiyah Omtatah, the CJ allowed his preliminary objection (PO) setting the stage that would impact on the final decision.
"These are the orders of the court: The preliminary objection by the interested party (Mr Omtatah) together with the application No. 13 is hereby allowed," CJ Mutunga said.
By allowing Omtatah's application, Mutunga paved the way for three judges to disqualify themselves from the matter, hence signifying the collapse of the case, an argument Justice Njoki opposed.
Omtatah had argued that Mutunga and Wanjala, both of who sit on the Judicial Service Commission which is a respondent in the case, and Justice Njoki who has written to the JSC, should disqualify themselves since they could not be impartial in their ruling.
Njoki dismissed the CJ's powers to vary the hearing date.
"There is no provisions in the constitution for the CJ to issue orders varying another judge's decision," she said.
Justice Ojwang supported Justice Njoki's line of argument.
"The interested party, Mr Okiya Omtatah Okoiti, contested the applicant's preliminary objection, though on a large range of considerations that go beyond the proper basis for disposing of the objection," he said.
"Omtatah proceeded on his case by general argument, not limited to the defining format of a preliminary objection, especially the recognised template of the "pure point of law".
He said Omtatah's argument could not therefore occasion a decision the three judges took.
But Mutunga argued "Omtatah raised a very important issue. It is clear from the argument raised, Omtatah's PO is not based on the need to disqualify judges but is based on impartiality of the bench on whether it is biased."
He went on: "The facts by Omtatah cannot be disputed. Justice Wanjala and I sit on the JSC who made the decision that judges should retire at 70 years. We have participated in the JSC's decisions. Omtatah's argument is based on hard facts. Issues raised point to the integrity of this court."
Mutunga also defended his decision to vary the dates Justice Njoki had earlier issued that the case be heard on June 24 and brought the matter forward to June 2 given that he would be retiring today, noting if the matter had been held next week, there would be no quorum for a the court to make a decision.
Further, if the matter would be heard on June 24, lack of a quorom would imply that Justice Rawal would continue working as a DCJ as well as Justice Tunoi.
Both Justice Ibrahim and Wanjala supported the CJ's line of argument.
"Mr Omtatah submitted that when the judges of the Constitutional Court of South Africa found that they were conflicted and that as a result it was not able for the court to constitute a bench, they refused to grant leave to appeal," Justice Ibrahim said in his ruling.
"He urged that we should be persuaded to therefore, where we find that we are conflicted and cannot constitute a bench to hear this matter, let the Court of Appeal decision stand."
Justice Wanjala defended the decision by the CJ to vary the hearing date by asserting that the CJ had the powers, as the head of the Supreme Court, to do so.
"Now, it is a matter of common knowledge that the Chief Justice had declared his intention to retire as head of the judiciary and President of the Supreme Court on June 16, 2016," he explained.
"In the circumstances, if the date of June 24 set down for hearing by the duty judge stood, it would bring into play a number of scenarios. The first of these scenarios is that come June 24, there would be no quorum of five Judges to hear the matter substantively. The Deputy Chief Justice and Mr Justice Tunoi being parties and applicants in the matter would be expected to steer clear of the Bench leave alone constituting one."
He went on: "The judgment of the Court of Appeal would remain suspended, the respondents would remain hamstrung by the conservatory orders, and the applicants would remain in office until they attained the age of 74 since no five-judge Bench could ever be raised to pronounce itself on the matter."
Mutunga dismissed Njoki's orders which sought to fix the hearing of the Rawal and Tunoi case on June 24, a week after his retirement which falls today.
"The ex parte orders granted by the duty judge, on 27th of May, 2016, are hereby vacated. The judgment of the Court of Appeal shall stand until it is either affirmed, or reversed by a competent Bench of this court," said Mutunga when he read the final Supreme Court decision which was however contested by both Rawal and Tunoi through their lawyers Gatonye Waweru and Pheroze Nowrjee respectively.
But Mutunga had the last laugh when he delivered the final orders.
"In view of the fact that two members of this Bench were minded to allow preliminary objections No. 11 and 12, while two others were equally minded to disallow the said preliminary objections, and the 5th member has recused himself from making a finding on the objections, there is no determination that has been made regarding preliminary objection No. 11 (Rawal) and 12 (Tunoi)."
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