[2015] KECA 309 (KLR)

Tunoi & another v Judicial Service Commission & 3 others (Civil Appeal 167 of 2015) [2015] KECA 309 (KLR) (23 October 2015) (Judgment)

Justice Philip K. Tunoi & another v Judicial Service Commission & 3 others [2015] eKLR

Neutral citation: [2015] KECA 309 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal 167 of 2015

F Sichale, J Mohammed & S ole Kantai, JJA

October 23, 2015

Between

Justice Philip K. Tunoi

1st Appellant

Justice David A. Onyancha

2nd Appellant

and

The Judicial Service Commission

1st Respondent

The Judiciary

2nd Respondent

Attorney-General

3rd Respondent

Justice Leonard Njagi

4th Respondent

(An appeal from the ruling & orders of the High Court of Kenya at Nairobi (Mwongo, J) delivered on 21st May 2015 in HCC & HRD CONSOLIDATED PETITION NO. 244 OF 2014)

Judgment

2. This appeal arises out of the order by Mwongo, J, issued on 21st May 2015 in High Court Constitutional & Human Rights Division Consolidated Petition No. 244 of 2014. The appellants in the matter are senior judges of the Superior Courts of Kenya: the 1st appellant is a Judge of the Supreme Court while the 2nd appellant is a Judge of the High Court.

Background 3. This matter was provoked when the appellants received letters dated 28th April, 2014 from the office of the Chief Registrar of the Judiciary (CRJ). The letters gave notice to the appellants of the Judicial Service Commission’s (JSC) resolution for all judges who were appointed to office prior to the promulgation of the Constitution of Kenya, 2010, to retire at the age of 70 years. The letter to the 1st appellant informed him that he would attain the retirement age of 70 years on 2nd June, 2014 and would retire from service with effect from 3rd June, 2014; and the 2nd appellant having already attained retirement age of 70 years on 1st December, 2013 was to retire from service with effect from 3rd June, 2014.

4. By Petition No. 244 of 2014 dated 26th May, 2014 and filed in the High Court, the appellants sought to challenge the constitutionality of this decision. The gist of their argument, and supported by an earlier resolution of the JSC dated 18th April 2011, is that the Judges who were already in office on the effective date of the new constitution were “saved under S. 31(1) of the 6th Schedule of the Constitution of Kenya, and they shall therefore retain their retirement age of seventy-four (74) years”. It is the appellants? argument that not only were their constitutional rights violated but that the retirement notice served as a tool to remove the appellants from office against the provisions of the Constitution, particularly Article 168(1) which provides the grounds for removal of a Judge from office.

5. This position was strongly opposed by Ms Ann A. Amadi, the Chief Registrar of the Judiciary and Secretary of the JSC in her replying affidavit sworn on 4th July, 2014. Ms Amadi averred that after promulgation of the Constitution in 2010, all serving judges of the High Court and Court of Appeal, including the appellants, appointed under the repealed Constitution took a fresh oath of office and swore to uphold and defend the Constitution. Ms Amadi further averred that the effect of this was an acknowledgment by all judges that they now held tenure of office under the new Constitution and thus were bound by its provisions which provide that the retirement age of all judges is 70 years in consonance with Article 167(1). Further, it was deponed that when advertising for the office of Judge of the Supreme Court on 1st April, 2011, it was clearly stipulated that the age of retirement was 70 years. As a result the 1st appellant was aware and was bound by those terms of office. It was also averred that the JSC?s resolution dated 18th April, 2011 was erroneous and on the face of it was contrary to the provisions of the Constitution and therefore was of no effect and cannot be relied on in support of the appellant’s case.

6. Petition No. 244 of 2014 together with Petition No. 495 of 2014 [JusticeLeonard Njagi v JSC & 2 Others] were certified, pursuant to Article 165(4) of the Constitution for appointment of a bench of not less than three [3] judges by the Chief Justice and among other directions by the Chief Justice, the two petitions were to be consolidated. The 3rd respondent brought an application seeking to be enjoined in Petition No 244 of 2014 as amicus curiae by way of notice of motion dated 5th April 2015. Another application was brought by the appellants before the High Court seeking orders that the directions of the Chief Justice be vacated. In a ruling delivered on 8th May 2015, the High Court (Mwongo, Korir, Meoli, Ong’udi & Kariuki, JJ) dealt with both applications and dismissed the 3rd respondent?s application seeking to be enjoined as amicus curiae and found that the order of consolidation made on 24th February, 2015 by the Chief Justice had no binding effect on the Court. In exercise of its power under Rule 17 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) the Court on its own motion consolidated Petition Nos. 244 and 495 of 2014. Petition No. 244 of2014 became the lead file.

7. Aggrieved and dissatisfied by that ruling, the appellants sought leave of the High Court to appeal in Petition No 244 of 2014 and a stay of proceedings pending the hearing and determination of the appeal. Whereas leave was granted, the High Court declined to order a stay of proceedings and a hearing date was fixed for 21st & 22nd May, 2015. Having obtained leave to appeal, the appellants filed a Notice of Appeal to this Court dated 11th May, 2015. In the meantime the appellants sought from this Court under Rule 5(2)(b) of the Court of AppealRules, a stay of proceedings. Pursuant to Rule 32(5) of the Court of Appeal Rules the Court, on 19th May, 2015, granted the stay of proceedings and directed that it would issue its reasoned ruling to the application for stay on 9th June, 2015.

8. On 21st May, 2015, the appellants informed the High Court that by a letter dated 20th May, 2015 they had presented to all parties to the suit as well as to the Registry copies of the Court of Appeal order dated 19th May, 2015, staying further proceedings in the High Court pending the determination of the appeal before the Court of Appeal in Civil Application No. NAI 122 of 2015. The High Court (Mwongo, J) noted that Civil Application No. NAI 122 of 2015 stayed further proceedings in lead Petition No. 244 of 2014 and directed that a mention to receive the reasoned ruling to be delivered by the Court of Appeal on 9th June 2015 be held on 22nd June, 2015 at 9:00 a.m.

9. This particular direction/order of the High Court (Mwongo, J) is the source of the issue in this present appeal. The appellants? Memorandum of Appeal contains 17 grounds of appeal against the orders made on 21st May 2015. The grounds of appeal, inter alia are that the learned Principal Judge was in contempt of the Order issued by the Court of Appeal on 19th May 2015 in Civil ApplicationNo. NAI 122 of 2015 which stayed all further proceedings in the High Court; and that this order was ignored, proceedings nevertheless conducted and orders made therein. Further, that the orders in the High Court had been made without jurisdiction since orders were given by only one judge as opposed to “a five judgebench”. Also, that the learned Principal Judge made an error in holding a hearing “inter partes” when the matter was not listed in the cause list for 21st May 2015 and no notice of the hearing was issued to the petitioners.

10. The appellants prayed for the appeal to be allowed; that the ruling and orders of the High Court made on 21st May, 2015 be set aside and quashed; and costs of and incidental to this appeal be borne by the respondents.

Submissions by Learned Counsel 11. When the matter came up for hearing before us on 8th October, 2015 all the parties were represented by learned counsel. Learned Senior Counsel Mr P. Nowrojee and learned counsel Mr F. Ngatia appeared for the appellants; learned Senior Counsel Mr P. Muite and learned counsel Mr Issa Mansur appeared for the 1st and 2nd respondents; learned counsel Mr Waigi Kamau holding brief for Mr Mwangi Njoroge appeared for the 3rd respondent; and learned counsel Mr S.M Mwenesi appeared for the 4th respondent.

12. Mr Ngatia submitted that on the 21st May 2015 when the petition had first been scheduled for hearing, the matter was before the Presiding Judge alone instead of the full five-judge bench and thus the single Judge had no jurisdiction to proceed in the matter. Further it was submitted that the matter had not been listed in the cause list for the day and Mr Mwenesi, counsel for the 4th respondent, was not present in court. It was submitted that despite asking the Court to heed the stay of proceedings issued by the Court of Appeal, the learned judge proceeded to order for another mention date on 22nd June 2015 to receive the reasoned ruling of this Court on the stay granted.

13. Mr Nowrojee submitted that a ‘mention’ was also a proceeding and referred the Court to the case of Otieno Clifford Richard V R, HCCC No. 720 of 2005 in support of this position. Counsel urged the court to make an order excluding the learned Principal Judge from the five-judge bench. Counsel left it to the court to make a determination on the issue of costs. Mr Nowrojee did not urge the 1st ground on contempt and when the 3rd respondents counsel attempted to urge the same, Mr Nowrojee indicated that they did not wish to pursue the complaint on contempt.

14. Mr Issa Mansur for the 1st and 2nd respondents in opposing the appeal submitted that the letter from Mr Ngatia filed in Court on 20th May 2015, giving notice that proceedings in Petition 244 of 2014 had been stayed pending the appeal, instructed that the letter be placed before the trial court. It was argued that it was the Court’s duty to receive the Court of Appeal order and ensure that the same was received by all the parties. Consequently there was no ruling or order made by the High Court. Counsel pointed out that the learned Principal Judge did not accede to the request to proceed with petition No. 495 of 2014 and limited himself to dealing only with the ruling of the Court of Appeal. Counsel submitted that there was proper judicial conduct on the part of the learned Principal Judge. Counsel urged this Court to dismiss this appeal as having no merit and being unnecessary.

15. Mr Kamau similarly opposed the appeal, pointing out that the main issue for determination was whether the learned Principal Judge, negated the order of stay granted by the Court of Appeal. Counsel answered this in the negative, submitting that the learned principal judge received the Court of Appeal order and awaited the ruling. Counsel argued that the present appeal was merely a tactic to delay the hearing of Petition No. 244 of 2014.

16. Mr Mwenesi for the 4th respondent, in supporting the appeal, reiterated that though the learned Principal Judge was aware of the stay of proceedings? order from the Court of Appeal, he proceeded to issue a mention date which action constituted ‘proceedings’.

17. In reply, Mr Ngatia submitted that there were lengthy engagements made before the learned Principal Judge which could not be wished away. Counsel argued that the effect of the Court of Appeal order was to bar any subsequent proceeding or mention by the High Court.

Determination 18. We have carefully considered the proceedings, the submissions by learned counsel and the law.

19. In our determination of this appeal, we shall confine ourselves to the ground of appeal as set out in the memorandum of appeal dated 8th July, 2015.

20. For the sake of clarity, we set out the impugned order verbatim:“This petitioncoming up for hearinginter parteson 21st May 2015 before the Hon. Mr. Justice Mwongo and upon hearing Counsels (sic) for the 1st and 2nd Petitioner, Counsel for the 1st and 2nd respondents, Counsel for the 3rd respondent and in absence of Counsel for the 3rd Petitioner:It is hereby ordered:That the matter be mentioned on 22nd June 2015 to receive the reasoned Ruling of the Court of Appeal. Given under my Hand and the Seal of this Court this 21st day of May, 2015. ”

21. Was the order given by the learned Principal Judge on 21st May, 2015, an order capable of being appealed from? We do not think so. There was no decision that was made save to direct that a mention be held in Court in order to receive the reasoned Court of Appeal ruling which was to be delivered on 9th June 2015. Had the Court of Appeal ruling been made available to the parties on 21st May 2015, the same would have been received by the Court and noted in the record on the same day. It would have not affected the petition or matters before the Court in any way. Since the reasoned ruling of the Court was not available, the Court gave a mention date to receive the same after delivery by this Court.

22. Our position is fortified by the fact that on 21st May 2015, Mr Muite argued that the two petitions had been deconsolidated by the stay orders by necessary implication and urged the Court to proceed with Petition No. 495 of 2014. The appellant’s counsel Mr Ngatia opposed this arguing that the two petitions were joined by the ruling of this Court and that both had been stayed. In the absence of the reasoned ruling of this Court, it was prudent for the learned principal judge to call for a mention date to receive the same.

23. We disagree with the appellant’s arguments that the learned Judge continued with the proceedings despite the stay that had been issued by this Court.

24. We find that the directions given by the learned Principal Judge did not amount to making progress in the Petition. Receiving the order of this Court which issued a stay of proceedings in the High Court and making the ruling a part of the record is not judicial progression of the matter before the High Court.

25. In any event the date of 22nd June 2015 given as the mention date is long past, and no progress has been made in the High Court on the petitions. This is in keeping with the stay orders issued by this Court. We note that the learned principal judge did not make any pronouncements on the matters raised by the respondents save to point out that a stay had indeed been granted by this Court.

26. The petition and matters in dispute therein remain ‘stayed’ pending the determination of the appellant’s appeal. The date of 21st May 2015 had already been decided before the stay was issued by this Court and all the parties were aware of that particular date and no prejudice was suffered by any party. It was only as a matter of practice to have the matter mentioned and make the order that the Court of Appeal had issued, namely a stay of proceedings in the High Court.

27. In view of the foregoing, we find that this appeal stands dismissed. In view of the public nature of the issues raised in this appeal, each party shall bear its own costs of this appeal.

DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF OCTOBER, 2015. F. SICHALE---------------------------JUDGE OF APPEALJ. MOHAMMED---------------------------JUDGE OF APPEALS. ole KANTAI---------------------------JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR