Court stops JSC from retiring Justices Tunoi and Onyancha

The Court of Appeal has temporarily stopped the Judicial Service Commission (JSC) from retiring Judges Philip Tunoi of Supreme Court and David Onyancha of High Court.

The two Judges will now continue serving until a case they filed at the Appellate Court challenging their retirement is heard and determined.

According to Tunoi and Onyancha, the Constitution of Kenya 2010 set the retirement age for Judges at 70 years, contrary to the 74 years set by the old Constitution.

The two argue that they were recruited under the old constitutional dispensation and therefore must serve up to the maximum age it had set.

The temporary orders by the Court of Appeal followed consent between the lawyers representing the Judges and the JSC.

The Appeal Court directed that the applicants file the main appeal by close of business Friday to allow JSC to respond to it within seven days.

The case will be heard on February 12^th, 2016. The presiding Judges are J.B.M. Kariuki, Patrick Kiage, Jamila Mohamed, Otieno Odek and William Ouko.

The ruling comes even as a similar petition filed by Deputy Chief Justice Kalpana Rawal who has also challenged the retirement age.

Rawal is set to retire this week after she clocks 70 years.

Early December, Rawal lost an application she had made at the High Court seeking to continue serving in the Judiciary past 70 years.

This was after the High Court ruled that she has to retire at the age of 70, as contained in the Constitution of Kenya 2010.

In their ruling, the five-judge bench faulted JSC saying it did not follow the proper statutory procedure in advertising for the position of the Deputy Chief Justice.

She later moved to the Court of Appeal to challenge the High Court decision.

JSC opposed Rawal’s application that also opposed the process to replace her, saying when she applied for the job in 2013, the new constitution was already three years old.

JSC also argued that the process of recruiting a Deputy CJ is long and will be concluded after Rawal attains retirement age of 70 this month, hence the need to start the recruitment process early.

Chief Justice Dr. Willy Mutunga, while appearing on Citizen TV’s Cheche show early December, said that Rawal and other Judges have the constitutional right to petition the courts on the matter of their retirement.

Declining to comment on whether judges should retire at 70, Mutunga said that he would uphold whatever ruling the High Court makes.

During the same interview, the CJ revealed that he opted to retire earlier than the constitutionally set date of June 2017 saying that his early retirement will allow for ample time to find his replacement.

He explained that it was in the best interest of the country for him to leave office early, as the state needed to have a fully functioning Supreme Court as it heads to the polls should any party challenge the poll results.