No Madaraka Day break for lawyers on judges retirement case

There will be no Madaraka Day break for lawyers involved in the case challenging the retirement age of two judges as the Supreme Court Tuesday declined to give any additional time for them to prepare their defence and responses to various applications on the matter.

Deputy Chief Justice (CJ) Kalpana Rawal had through her lawyer Kioko Kilukumi sought more time to respond to the Judicial Service Commission’s application seeking to have temporary orders issued by Justice Njoki Ndung’u lifted, arguing that procedures set had not been complied with.

Activist Okiya Omtata told the court that he had also filed two applications over the matter; one challenging the jurisdiction of the Supreme Court to hear the case on the basis that all the five judges in the constituted bench had at one point or another made their stance known.

The Law Society of Kenya also filed an application seeking to be enjoined in the matter as a friend of the court  on the basis that they  wanted to bring all the parties in the dispute together.

“We do not have the luxury of time. All parties have to put in their responses and argue them in court on the same day. All applications shall be heard on Thursday,” said Justice Smokin Wanjala.

In his second application Mr Omtata is seeking to have the whole Supreme Court disqualify itself on the basis that it is unable to give a fair judgement on the matter.

“I am not asking for a recusal of the judges but a disqualification of the whole court so that the Court of Appeal decision can stand,” he told the judges.

The deputy CJ and her counterpart Justice Philip Tunoi have filed separate appeals at the Supreme Court challenging last week’s Court of Appeal decision that maintained that all judges, including those hired before the promulgation of the current Constitution should retire at 70 years.

READ: Rawal deepens crisis in courts with opposition to CJ’s directive

The two-judge bench of Ms Ndung’u and Mr Wanjala also gave the order in which the two cases will be heard together from tomorrow, starting with a preliminary objection filed by the deputy CJ challenging the jurisdiction of Chief Justice Willy Mutunga to fast-track the hearing.
“We are raising a jurisdictional question as to whether the Chief Justice has the power to vary a hearing date given by a single judge or constitute the two- judge bench,” Mr Kioko Kilukumi told the court.
The challenge by the deputy chief justice is likely to culminate into a courtroom showdown tomorrow.
Legal experts had earlier argued that the CJ’s decision to bring forward the hearing of the matter could save the Supreme Court from a deepening crisis as he is set to retire on June 16 and there would be no proper quorum to hear the matter then.