The retirement age case of Deputy CJ Kalpana Rawal and Justice Philip Tunoi will be heard on Thursday.
Chief Justice Willy Mutunga has directed the hearing moved forward ‘given the speed at which the application was made and public interest it has generated’.
The CJ decided to fast track the case while suspending the Court of Appeal decision on Friday by Justice Njoki Ndung'u who had directed that the case be heard on June 27.
Mutunga would have exited the judiciary by then causing a crisis as there would be a quorum hitch because the Supreme Court would have less than five judges required to hear the case.
In the statement, Mutunga directed the Supreme Court registrar to notify the parties to appear before Judges Smokin Wanjala and Ndung’u tomorrow for directions on the hearing of the case.
Already, there has been a lot of discontent with Justice Ndung’u’s decision with many Kenyans on social media accusing of trying to create confusion and on Monday former LSK CEO Apollo Mboya filed a fresh petition to have Justice Ndung'u sacked.
Mboya has petitioned the Judicial Service Commission (JSC) to have Ndung'u removed as a Supreme Court judge saying Ndung'u engaged in misconduct by issuing the ruling yet there was a clear conflict of interest in matter.
He says Ndung'u and two other judges of the Supreme Court had already pronounced themselves on the matter of retirement age of judges.
On Friday, the Supreme Court stopped the recruitment of the Deputy Chief Justice hours after the Court of Appeal ruled that Justices Rawal and Tunoi must retire at 70.
Justice Ndung'u issued orders stopping the replacement of Kalpana Rawal until an appeal she filed before the court is heard and determined.
"Pending inter-parties hearing and determination of this application, a conservatory order is hereby issued directing that the decision of the High Court affirmed by the Court of Appeal dated May 27, 2016 to the effect that the retirement age of judges is 70 years be suspended," she said.
Rawal went to court saying she is supposed to retire at 74 and not 70 since she was hired under the old constitution.
In the judgement, appellate judges GBM Kariuki, Paul Kiage, Milton Makhandia, Jamila Mohamed, William Ouko, Kathurima M’Inoti and Otieno Odek unanimously declared that judges retire at 70.
Hopes of Rawal succeeding CJ Willy Mutunga were dashed when the Court of Appeal capped judges retirement age at 70.
A seven-judge bench declared that Rawal and her colleague Justice Philip Tunoi, 72, should retire at 70 years. Mutunga, 69, has said he will retire at the end of this month so that a recruitment process for another Chief Justice can start.
The two had moved to the court to contest a High Court decision in which five judges headed by the principal judge David Mwongo ruled that they retire at 70 and not 74 as they wanted.
They said it is wrong for Rawal to claim she is serving under the old constitution, while she promised to abide by the new constitution when she took oath of office as the Deputy Chief Justice on September 29, 2013. They said any judge cannot go against an oath, because it has substantial legal and constitutional implications.
“It was erroneous for Rawal to claim she can continue serving under the old constitution, yet she swore under the new constitution upon her new appointment,” the judges said.
But in essence, Rawal's case at the Supreme Court might collapse before it starts.
The bench comprised of the Chief Justice, herself, Tunoi, judges Jackton Ojwang’, Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung’u.