BY SAM ALFAN.
High Court has issued temporarily orders restraining the Judicial Service Commission from forcefully retiring two Judges until the matter is heard and determined.
Justice George Odunga restrained JSC from sending Justices Philip Tunoi of the Supreme Court and David Onyancha of high court home.
The two moved to Court yesterday through their lawyer Fred Ngatia seeking to nullify a Judicial Service Commission circular that set their retirement age at 70.
They accused the JSC of issuing a directive those conflicts with the constitutionally-set retirement age of 74 for judges.
Justice Odunga said that the move by the JSC is Unconstitutional and raises serious Issues which require further Investigation by the Court.
Their lawyer, Fred Ngatia, told the court that there are two conflicting constitutional requirements on the retirement age of judges.
On May 24, 2011, the JSC informed judges that the retirement age was 74.
However, in another circular dated May 27 the commission stated that the retirement age of all judges are 70.
“The letter dated April 28 from the judiciary was delivered to me by a subordinate member of the judiciary that I should retire on June 3,” says Tunoi in his affidavit.
In his submission yesterday, Ngatia said the two circulars are contradictory and impossible to reconcile.
“It is due to such conflicting decisions that it is now necessary for this court to adjudicate which decision is in accord with the law,” said lawyer, Fred Ngatia.
Ngatia said since the two judges 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.
The two are seeking several orders among them a declaration that the date of retirement is when they attain the age of 74.
They also want the court to declare that the age of the judges who were in service as at the promulgation of the 2010 constitution is 74.
The matter will be heard on June.