Judiciary, LSK fail to strike deal on Tunoi, Rawal retirement

The Supreme Court has moved the hearing of the retirement age case pitting Justices Kalpana Rawal and Philip Tunoi to Monday next week to allow the Judicial Service Commission (JSC) seek an out of court resolve.

Parties in the retirement dispute, however, failed to agree on mediation as a medium to resolve the Supreme Court judges’ retirement age row.

A two-hour meeting failed to reach an agreement with lawyer Ahmednassir Abdullahi for the Judicial Service Commission saying the Law Society of Kenya (LSK) proposal was no longer an option.

John Khaminwa, representing Kituo Cha Sheria, supported Ahmednasir’s sentiments.

The court has now allowed LSK to meet JSC commissioners Friday before it gives a ruling on the matter.

This comes after LSK, which has been enjoined in the case, proposed the mediation route as opposed to a court process citing challenges in the proceedings including impartiality of judges of the Supreme Court.

This follows a crisis in the country’s top court since Rawal and Tunoi cannot sit to deal with a matter they are involved in due to conflict of interest. The court, therefore, lacks the quorum of five judges required to hear and determine a matter.

The crisis was occasioned by a stay order issued by Supreme Court Judge Njoki Ndung’u just moments after the Appellate Court issued an order requiring Justices Rawal and Tunoi to retire from the court since they have attained the age of 70, as stipulated in the Constitution.

The retirement of Rawal, Tunoi and 33 other judges is seen as part of the vicious CJ Willy Mutunga succession contest and the scramble for the control of the Supreme Court, ahead of next year’s General Election.

With the current stay order, Rawal is effectively placed, by operation of Section 5 (4) of the Judicial Service Act as the Acting Chief Justice for at least 6 months once Mutunga retires.

This will also place her as the acting chair of the Judicial Service Commission that will recruit the next Chief Justice to take over from Mutunga.

On Monday, Mutunga convened a 5-judge bench to hear the appeal filed by Kalpana Rawal and Phillip Tunoi on their retirement age.

Mutunga ordered the matter be certified as urgent and be heard Thursday, and not June 24th, as was earlier set by Justice Njoki Ndung’u.