{UAH} Edmund/Pojim/WBK: Cough cough!!!! Two judges send Rawal home, two defend her case | The Star, Kenya

http://www.the-star.co.ke/news/2016/06/15/two-judges-send-rawal-home-two-defend-her-case_c1369533

Two judges send Rawal home, two defend her case

Two out of the five Supreme Court judges hearing Deputy Chief Justice Kalpana Rawal's case yesterday voted to send her home at 70 in a ruling seen to arrest existential crisis at the highest court. The crisis threatened to tear apart the judiciary a year ahead of the presidential election.

The two also disqualified themselves from hearing the case, citing vested interest by members of the bench. The two are justices Mohammed Ibrahim and Smokin Wanjala.

Consequently, they set aside orders suspending Rawal's retirement, which were issued by Justice Njoki Ndung'u.

They held that the CJ in moving forward the hearing date of the matter acted in good faith and stopped the circus the case would have turned into if the June 24 hearing were to stand. If the case was still set for June 24, there would be a quorum. Chief Justice Willy Mutunga retires tomorrow.

Justice Wanjala noted that the CJ, who is vested both the administrative and judicial powers, rightfully exercised the former to constitute a bench and give an early hearing date in the interest of justice to ensure matter is dealt with when there is quorum.

"Why would a litigant who moved to court under a certificate of urgency be aggrieved if his or her case is heard quickly?" he asked.

Ibrahim said the court must not only be independent and impartial, but it must be seen to be impartial.

And having authored a letter to the Judicial Service Commission making known his reasoning together with other four judges on the issue of retirement age of judges, he does not believe he will be impartial.

The court, he said, has jurisdiction when it is properly constituted, when no one judge disqualifies themselves and when the matter is filed properly in law.

The memorandum in which among other things they demanded that judges pension be calculated to 74 years ought not to have been written, he said.

He noted that this will not sit right in the eyes of common man if he decided to hear the case as they will perceive a conflict of interest.

"I should put public interest first. Recusal from the bench will protect the bigger integrity of the judiciary and I hereby recuse myself," Ibrahim said.

He suggested that the AG and relevant authorities amend the law to increase the number of Supreme Court judges from current seven to either nine or eleven to avoid future crisis of lack of quorum.

In a dissenting ruling, justice Jacktone Ojwang set aside orders by his boss the CJ and upheld judge Ndung'u's decision for the matter to be heard on June 24.

In the case, Rawal is challenging the decision by the Court of Appeal on May 27 to send her and Supreme Court judge Philip Tunoi home at 70 years.

Immediately after the ruling, the two judges moved to the Supreme Court and obtained a temporary order from justice Ndung'u to stop their retirement. Justice Ndung'u also directed that the matter be heard on June 24.

Consequently the CJ called for the file and moved the hearing date forward to June 2 and appointed a five-judge bench to handle the case.

This was met with opposition from Rawal and Tunoi, who said their boss did not have the powers to vary an order granted by justice Ndung'u and give new hearing dates in the matter.

They said this violates the constitution.

The JSC said the CJ did not act outside the constitution in expediting the hearing of the case.

In their verdict, the appellate judges said "all judges are to retire by the age of 70 years."

Justice Rawal turned 70 on January 15 and has been fighting to stay on as a judge.

The appeal was rooted mainly on the basis that she was employed as a judge under the old constitution which allowed judges to work until 74 years.

Her legal battle against her employer, the JSC, began when she received a letter dated September 1, last year ordering her to retire on January 15 when she turned 70 years.

Two judges send Rawal home, two defend her case | The Star, Kenya

http://www.the-star.co.ke/news/2016/06/15/two-judges-send-rawal-home-two-defend-her-case_c1369533

Sent from my BlackBerry 10 smartphone.