Lawyer Fred Ngatia for Justice Philip Tunoi and David Onyancha who has received letters of retirement notices asking them to vacate office on their 70th birthday.
BY SAM ALFAN
TWO senior judges have moved to court challenging their retirement age as it has been directed by the Judicial Service Commission.
Supreme court Judge Philip Tunoi and David Onyancha of high court has sued JSC and judiciary and want the court to issue orders restraining respondent from forcing them to retire at the early age instead of retiring at the age of 74 years per the constitution.
High Court judge George Odunga is expected to decide whether to allow them to continue serving pending the determination of the case.
Their lawyer, Fred Ngatia, urged the court to issue a conservatory order prohibiting the JSC or the judiciary from retiring Tunoi and Onyancha during their term in office.
Ngatia said there are two conflicting constitutional requirements on the retirement age of judges.
The two are protesting the letters they were served with by JSC asking them to vacate office on their 70th birthday.
They are arguing that, the retirement age of the judges who were in service as at the promulgation of the 2010 constitution is the age of 74 years.
Judicial Service Commission served judges Philip Tunoi, John Mwera and David Onyancha with retirement notices asking them to vacate office on their 70th birthday.
However reports say that some judges have been asked to retire at 74, which is being considered as double standards by the JSC.
70 is the retirement age of judges under the new constitution, but the old constitution allowed judges to serve until their 74th birthday.
The 38 judges who are facing early retirement want the JSC to allow them to continue serving until they reach 74 as agreed in 2011.
They have been ordered to retire in a controversial decision that has sparked protests against the Judicial Service Commission (JSC).
Already, three senior judges have received letters informing them that they are to retire after reaching the age of 70, as required by the new Constitution.
However, some of them argue that since they were hired under the old Constitution, which gave the retirement age as 74, they should be allowed to continue serving as agreed by the JSC in 2011. They say officials have ignored JSC’s own recommendations and are now humiliating them.
They have cited what they say is obvious double standards on the matter. At least one judge has protested at the manner in which the JSC is handling the matter, saying a junior worker asked him to provide a copy of his national identity card and other sensitive personal documents.
“I feel I have been mistreated, especially when the letter demanding retirement is brought by a junior member of the subordinate staff who also demanded a copy of my identity card, medical card and a copy of past pay slips among other documents.” Justice Tunoi told one of the local newspapers.
Justices Tunoi and Onyancha have now fulfilled their threatened to sue JSC, chaired by Chief Justice Willy Mutunga.
Their lawyers, Ngatia & Associates, say in a letter dated May 14 that the retirement notices are “predicated upon a fundamental error of law.”
They demanded a response within three days. “In the event that we do not hear from you within the stipulated period, we shall regrettably be constrained to institute court proceedings,” they said.
Justice George Odunga Directed the to appear before tomorrow at 2:30.