The tribunal investigating the conduct of Supreme Court judge Philip Tunoi has failed to agree whether the supreme court order to retire Tunoi halted the tribunal's proceedings or not.
The Sharad Rao led tribunal argued that the tribunal was not overtaken by events and that the decision of the Supreme Court order only deprived the tribunal of its subject but did not interfere with tribunal's proceeding.
For the tribunal to be overtaken by events, it would have to complete and present its findings.
Tunoi's lawyer, Fred Ngatia accused the JSC of stealing the judiciary letterhead when issuing Tunoi with a retirement notice.
Ngatia further argued that the responsibility of issuing the retirement notice is the judiciary's mandate and, therefore, the letter by JSC notifying Tunoi of his retirement before the hallmark ruling by the Supreme Court was null and void.
Ngatia said that it’s regrettable that the judiciary had not filed cross-appeals at the JSC and at the High Court when Tunoi appealed to have him allowed to continue serving as a Supreme Court judge. Nonetheless, Ngatia said his client is not clinging to power and that Tunoi is tired of the lengthy litigation process.
It will be remembered that Tunoi continued to serve after attaining the age of 70 years which is the retirement age as enshrined in the new Constitution until June 14, 2016 when a majority of three Supreme Court judges against 2 set aside stay order on the matter.
The tribunal is expected to make a ruling on Monday as to whether the Supreme Court order affects the tribunal proceedings since Tunoi is no longer a sitting judge.
According to article 168, 7, b of the constitution, a tribunal appointed by the president to investigate the conduct of a judge shall "inquire into the matter expeditiously and report on the facts and make binding recommendations to the President."
Article 168, 7(b)
"... Inquire into the matter expeditiously and report on the facts and make binding recommendations to the President,” states the Constitution of Kenya 2010
The article is, however, silent on silent on a judge that attains retirement age while still being investigated by a tribunal.