The standoff in the Judiciary over the retirement age of judges played out in the Supreme Court on Monday morning during the determination of an appeal challenging the election of Wilfred Lesan as Bomet Senator.
His challenger Nick Salat through his lawyer Titus Koceyo wrote to the Chief Justice questioning the impact of having Justice Philip Tunoi who is over the age of 70 as part of the Bench that heard the case.
The majority of the judges on the bench – Justices Njoki Ndungu, Jackton Ojwang, Smokin Wanjala and Mohammed Ibrahim – however found that the Judicial Service Commission, “lacks the competence to determine when a judge may perform their judicial duty.”
Chief Justice Willy Mutunga however expressed a dissenting opinion saying it should not have been among the issues the Bench made a determination on.
He said the High Court was already seized of the matter and a hearing should have been accorded to the parties before a position was taken.
Last month the JSC resolved that Judges over the age of 70 would not hear cases, among them Tunoi.
He and Deputy Chief Justice Kalpana Rawal have challenged their retirement at 70 saying at the time they took up office, prior to the promulation of the Constitution, the retirement age was 74.
Article 167(1) of the Constitution states that, “a judge shall retire from office on attaining the age of 70 years, but my elect to retire at any time after attaining the age of 65.”
Tunoi and Deputy Chief Justice Kalpana Rawal however argue that they have a legitimate expectation to retire at age 74.
In response to Koceyo’s question on whether it was proper for Tunoi to hear Salat’s appeal given the different stands taken within the Judiciary on the retirement age of Judges, the majority on the Supreme Court Bench held that Judges have security of tenure and the JSC, “lacks competence to determine when a Judge may perform Judicial duty.”
“Article 160(1) of the Constitution states that ‘in the exercise of Judicial authority, the Judiciary, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.’” Justice Ojwang cited.