Court dismisses Kalpana Rawal, Philip Tunoi plea to remove two judges from retirement case

Deputy CJ Kalpana Rawal (right) and  Judge Phillip Tunoi 

Nairobi: Deputy Chief Justice Kalpana Rawal and Supreme Court judge Phillip Tunoi have suffered a setback after the Court of Appeal dismissed their separate applications to have judges GBM Kariuki and Milton Makhandia out of their retirement case.

A seven-judge bench composed of Justices Kariuki, Otieno Odek, Patrick Kiage, William Ouko, Jamilla Mohammed, Kathurima M'Inoti and Makhandia dismissed the applications and ruled that there was no basis to disqualify the two judges from hearing the retirement age appeals.

Tunoi wanted judges Kariuki and Makhandia out while Deputy Chief justice had an issue with the latter.

The complaint by the embattled 72-year-old judge was that Judge Kariuki would be biased over a contempt case back in 1994 where Tunoi had slapped him (Kariuki) with a Sh500,000 fine for disobeying court orders.

But the seven judges, in their ruling read by judge Kiage, ruled that for the 22 years that have passed, there is nothing to show that judge Kariuki would revenge in the retirement case.  The seven noted that the 70 years question on retirement did not touch Tunoi alone.

"Since its determination, the first applicant (Judge Tunoi) has remained in the Judiciary while the Presiding Judge (Kariuki) spent half that period at the Bar and the other half has been on the Bench and there is no evidence that while at the Bar or on the Bench there has been anything suggesting or manifesting itself into a likelihood of bias or retaliation or vindictiveness on the part of the Presiding Judge which would give rise to want of impartiality on his part against the first applicant," the  judges  ruled.

Tunoi’s application, however, had faced opposition from Judicial Service Commission which argued that 22 years have since passed and thus Justice Kariuki's presence has no conflicting interests in the case.

Dismissing the request, lawyer Paul Muite, said Justice Tunoi knew that the judge was sitting from the first day of the case and thus the application was allegedly meant to waste court's time.

"There are six judges in the case and a lone judge cannot influence their decision," the senior lawyer argued.

On Makhandia, the argument fronted by judges Tunoi and Rawal was the same- that he allegedly had interaction with Attorney General Githu on the case where the retirement issue was discussed.

But the court ruled that the two judges did not provide evidence to have him out of the court. The Court of Appeal slated the two cases to be heard on April 6 and 7.