Chief Justice Willy Mutunga retires by end of day today, leaving behind a headless judiciary following a Supreme Court ruling that also sent home his deputy Kalpana Rawal.
While Dr Mutunga had already indicated he would retire today, the case of Deputy Chief Justice Rawal remained largely unknown until Tuesday this week when her colleagues at the Supreme Court bench disqualified themselves from hearing an appeal challenging her retirement, to let the decision by the appellate court that she goes home after attaining the age of 70 stand.
That fate has been sealed today after Rawal and fellow Judge Justice Tunoi lost their last ditch attempts to block their exit from the Judiciary.
This is after the Supreme Court declined to reinstate a stay order initially issued by Justice Njoki Ndungu for 21 days, saying there was no bench to handle the matter.
“The matter has ended there,” outgoing CJ Willy Mutunga said in a brief ruling today.
The Supreme Court vacated Justice Ndungu’s stay order and upheld the Court of Appeal decision declaring that Deputy CJ Rawal and Tunoi should retire since they had attained the age of 70.
That means Dr Mutunga will exit the judiciary today alongside his deputy as well as Justice Tunoi.
With three of the seven Supreme Court Judges going home, and their replacements not yet in place, the judiciary remains without a leader as the CJ is the President of the Supreme Court and head of the organ.
The Ombudsman now says they had foreseen the situation and raised the matter long enough.
The Commission on Administrative Justice chairman Otiende Amollo said the transition in the Judiciary are among the four issues the commission raised in January but their advisory opinion was ignored.
“We did not need to go there and as a Commission we raised the issues in January this year. It was foreseeable from last year that we would be at this point, even if it was not constituted,” Otiende said on NTV today.
Although the process of judicial transition was not contemplated in the Constitution, Ombudsman says the situation was foreseeable and something could have been done to avert it instead of waiting to amend the constitution which he says is really a big discussion.
Otiende said with only four judges left at the Supreme Court, the uppermost court can no longer function.
“The constitution requires that for the Supreme Court to act, there has to be 5 judges.”
Under Section five of the Supreme Court Act, the senior Judge or a judges with professional seniority acts as the Presiding judge and takes the judges take precedence after the CJ and the DCJ, according to the dates on which they took office as judges of the Supreme Court.
In this case, justice Tunoi was third in the pecking order and with his exit after yesterday’s Court ruling on his retirement age, Justice Mohammed Ibrahim becomes the presiding judge, having joined the Judiciary before the other three – Jackton Ojwang, Smokin Wanjala and Njoki Ndung’u.
However, for effective management of the affairs of the Supreme Court, Ombudsman underscored the fact that the acting Judge is likely to face myriads of problems since there are roles that only the CJ can perform.
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