Justice Smokin Wanjala's statement on retirement of Supreme Court Judges

Judge Smokin Wanjala at the supreme court during the hearing of judges retirement age at the supreme court. (PHOTO: GEORGE NJUNGE/ STANDARD)

The main issue for determination raised by the Preliminary Objections in applications number 11 and 12 of 2016 is whether, by directing that applications 11 and 12 be heard on June 2, 2016 instead of June 24 as had been earlier directed by the duty judge, the Chief Justice acted in breach of the Constitution and the law.

It is important to establish the proper context within which the current controversy has arisen.

In direct contention are the powers of a single judge sitting to determine an ex parte application and the administrative powers of the Chief Justice to manage the Judiciary of which he is head, and the Supreme Court of which he is president.

The administrative powers of the Chief Justice in his dual capacity as head of the Judiciary and president of the Supreme Court are donated by the Constitution, Judicial Service Act, Supreme Court Act and Supreme Court Rules.

It is clear to me that the Constitution, Judicial Service Act, and Supreme Court Act and Rules thereunder, vest the Chief Justice with general powers of control and direction over the Judiciary and the Supreme Court. What does being the head of the Judiciary actually mean? What about being the president of the Supreme Court?

It must mean having powers, duties and responsibilities of an administrative nature whose exercise is to ensure the efficient and effective administration of justice. That is what the Judiciary is established and actually exists for.

An important caveat is the exercise of administrative powers by the Chief Justice or any other judge or judicial officer should not interfere with the decisional independence or adjudicative function of another judge.

I would also add the use of administrative powers should not be actuated by the intention to subvert the ends of justice.

In fact, administrative powers vested in the Chief Justice must be exercised in such a manner as to guarantee independence of the Judiciary.

On a number of occasions, a five-judge bench of this court has varied the decisions of a single judge. But before such a bench sits to vacate the orders of a single judge, it must be constituted in the first place.

Who has the legal authority to constitute such a bench? Is it not the Chief Justice and in his absence the Deputy Chief Justice?

The action by the Chief Justice left intact the decisional orders of the duty judge. As matters now stand, thanks to those orders, the applicants herein are still in office, while the respondents cannot declare a vacancy in the offices of the latter.

It is my view the directions by the Chief Justice were purely administrative and were invoked in the interests of the justice of the case.

Otherwise, why would a litigant who has moved to court under a certificate of urgency and who has been granted conservatory orders ex parte, be aggrieved when administrative action is taken to expedite the determination of his/her application? Where is the constitutional violation here? Where is the aggrieved respondent supposed to seek refuge?

It follows, as a matter of judicial integrity, that it is the orders of May 30, 2016 that must be held to give way to those of May 27, 2016.

Accordingly, I hereby uphold the single-judge orders of May 27, 2016.

I allow objection to the later orders, strike them out, and direct, that there shall be a hearing of the applicants' interlocutory applications, as ordered by the single judge on May 27, 2016.