Supreme Court Judges Njoki Ndung’u, Jackton Ojwang, Willy Mutunga, Mohamed Ibrahim and Smokin Wanjala during court proceedings.
Two Supreme Court judges who were challenging a Court of Appeal verdict that judges retire at the age of 70 on Tuesday evening suffered a major blow after a majority of the Supreme Court judges declined to hear their appeals and allowed the appellate court decision to stand.Supreme Court Judges Willy Mutunga, Mohamed Ibrahim and Smokin Wanjala disqualified themselves from hearing the case, saying they had in the past made public their opinions regarding the retirement age of judges and were therefore likely to be perceived as being biased irrespective of how they decided.Consequently, they lifted the temporary orders which suspended the judgment of the appellate court that set the retirement age at 70. However, they said the appeal by Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi would be heard by a future bench, which will presumably not have taken positions on the matter.Judges Jackton Ojwang’ and Njoki Ndung’u issued a minority dissent by saying they were ready to hear the appeals filed by the two judges.Justice Ibrahim had, in his ruling, declined to hear the appeals, regretting having made his opinion on the retirement age for judges. He said he had not anticipated that a colleague would file a case in court to challenge the 70 years retirement directive by the Judicial Service Commission.“Sitting here, I feel I am seriously conflicted to hear this case,” he said. “It is saddening that I have to disqualify myself despite the serious issues raised for determination.”He also regretted that the law constituting the Supreme Court had not anticipated the challenge before it so as to provide an appropriate alternative.He suggested to the Attorney-General to introduce an amendment in law to increase the number of Supreme Court judges from the current seven to prevent a situation in future where the court is left without a quorum if a judge disqualifies himself or herself.