President declines to name tribunal to probe Tunoi over age limit case

President Uhuru Kenyatta has declined to form a tribunal to probe Supreme Court Judge Philip Tunoi until a case he had filed at the Court of Appeal challenging his retirement age is heard and determined.

In a letter to Chief Justice Dr. Willy Mutunga and signed by Chief of Staff and Head of Public Service Joseph Kinyua, the President proposes that “we await the outcome of the Judicial Process after which we shall process the petition as required by the Constitution and the law”.

State House said that it is crucial for the Court of Appeal to make a ruling on the retirement age of Justice Tunoi before a tribunal can be formed. This is despite the 14-day constitutional deadline lapsing on Tuesday.

“Our attention has been drawn to the decision of the five judge bench of the High Court in Petition No. 244 of 2014 where the court in paragraph 398 concluded that the petitioners (Justices Philip Tunoi and David Onyancha), like other Judges serving on the effective date, transited into the new constitution under section 31(2); and post-vetting, that they serve on the terms thereunder including Article 167(1), which states that a Judge shall retire from office on attaining the age of seventy years,” read the letter in part.

“We further note that an appeal against the decision of the High Court has been instituted and is pending before the Court of Appeal and that the court has yet to pronounce itself on the matter, consequently, the decision of the High Court stands.”

The President has further dispelled any constitutional crisis that may arise from his decision declining to form the tribunal, at least for now, saying that “Justice Philip Tunoi has already been declared by a court of competent jurisdiction to have retired from office on attaining the age of seventy years”.

However, the Head of State says; “At this particular moment in time when the appeal is still pending and where the status of the Judge is subject to judicial consideration, implementing the recommendation of the Judicial Service Commission, in line with Article 168(5), would create a constitutional crisis.”

Early this month, the JSC committee led by Public Service Commission (PSC) chair Prof. Margaret Kobia indicated: “Whether or not there is material to suggest that a bribe was given to the Hon. Justice Philip Tunoi to influence the decision in Supreme Court election petition No. 18/2014 Evans Odhiambo Kidero and 4 others-Vs – Ferdinand Waititu Ndungu and 4 others to favour the petitioner, the commission is satisfied that this is an issue that requires further investigations by the tribunal.”

Tunoi’s woes began after Geoffrey Kiplagat, a former KASS FM presenter, alleged that he (Tunoi) had received Ksh 202 million from Nairobi Governor Dr. Evans Kidero to rule in his favour in an election petition filed by the now Kabete MP Ferdinand Waititu.

Waititu had moved to court to challenge IEBC’s decision to announce Kidero as Nairobi Governor after garnering 692,483 votes against Waititu’s 617,839.

The Supreme Court reaffirmed Kidero’s election in August 2014 ending a protracted court battle that had lasted for over a year.