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Go home, Court of Appeal tells judges Phillip Tunoi and Kaplana Rawal

By Kamau Muthoni | May 27th 2016

NAIROBI: The Court of Appeal on Friday ended Deputy Chief Justice Kaplana Rawal and Judge Phillip Tunoi's long stint at the Judiciary after ruling they ought to retire at 70 and not 74 years as they had argued.

The two judges suffered a major blow because they were the two senior-most judges in the Judiciary, and therefore they had a leg-up in heading the Judiciary temporarily when the Chief Justice Willy Mutunga retires. The senior-most judge heads the Judiciary until a substantive Chief Justice is appointed.

Lady Justice Rawal has been in the Judiciary for 16 years while Justice Tunoi has been in there for 29 years, but they both lost their appeals and therefore unless they appeal at the Supreme Court, they have to go home.

"The High Court did not err when it ruled that the constitution did not reserve the retirement age of judges who served in the former constitution. The retirement of judges is 70 years and for this reason the appeal is dismissed," the court ruled.

Lady Justice Rawal joined the Judiciary as a High Court judge in 2000 and was appointed the Deputy Chief Justice in 2013 to replace Nancy Baraza, who resigned in 2013 following a storm over her altercation with a security guard at a shopping mall in Nairobi. Lady Justice Rawal became the second-in-command in the Judiciary. Judge Tunoi joined the Judiciary in 1987.

Court of Appeal judges GBM Kariuki, Patrick Kiage, William Ouko, Prof James Otieno Odek, Jamila Mohammed, Milton Mahandia and Kathurima M'Inoti ruled that the High Court did not err by holding that judges who took oath of office under the 2010 constitution ought to have retired at 70 years.

Although their employer Judicial Service Commission had given the two judges a promise of not kicking them out of office in April 2011, it changed its stand in 2014.

Rawal put up a spirited argument that she never agreed to retire at 70 years when she was interviewed by JSC on February 2013 and for Tunoi, the argument was similar that the retirement notice was discriminatory as they had an guarantee of service until the end as provided under Kenya's old.

Her expectation, as she argued in court, was to be in office for four more years without disruption.

But the seven appellate judges ruled that the promise itself was not binding under the law, as the constitution was clear that the age to retire for judges had been reduced by four years.

“Was there a promise to serve until the age of 74? The decision by JSC was due to diverse interpretation and thus could not be conclusive. JSC could not make a binding promise as the retirement age is contained in the constitution.  The advertisement on the vacancy of the Deputy Chief Justice's office was clear that the office was a constitutional one  and the retirement age was 70 years. We are satisfied that legitimate expectation could not be founded as JSC could not make a binding promise." the judges ruled.

Judge Rawal and Tunoi had told the court that under the sixth schedule of the Constitution, their tenure in office remained unchanged but their argument was dismissed on account that the Supreme Court and its composition besides the seat of the CJ was created under the current constitution and thus the appointments were done under the 70 age bracket.

“The Supreme Court was not established in the former constitution, neither. Neither the Supreme Court nor the DCJ are successors of the old law. The positions in that court were new appointments established under the new constitution," the Appellate Court held.

The DCJ clocked 70 years on January 29, 2015 whereas judge Tunoi is 72 years.

Tunoi was first to be served with the notice alongside Judge David Onyancha in 2014. The judgment marked the end of the probe on the Sh200 million bribery allegations against him by Geoffrey Kiplagat as the law dictates that a tribunal can only investigate a sitting judge.

Lawyers representing the two judges told the court that they would try their luck, this time in the Supreme Court. An appeal will leave the issue with a thicker cloud.

If Rawal goes to the Supreme Court, she would not sit in her case and the same applies Justice Tunoi who is in the same retirement bandwagon.

It then leaves Chief Justice Willy Mutunga and Judges Jackton Ojwang, Njoki Ndung'u, Mohamed Ibrahim and Smokin Wanjala in the bracket.

However, the CJ is the chair of JSC and this kicks him out from determining the fate of his deputy. Likewise, justice Wanjala is a member of the commission and thus cannot sit due to conflict of interest.

The bench remains with three, two of which (Njoki Ndung'u, Ojwang) also made their reservations on the forcing judges to retire at the age of 70.

A further crisis is expected, as there will be no quorum at the Supreme Court as Mutunga, Rawal and Tunoi will be out of office. The law dictates that a quorum should be five judges minimum, which means that the zenith court will not be constituted to hear or determine cases until the fifth slot is filled.

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