EMBATTLED Supreme Court judge Philip Tunoi wants a Court of Appeal judge not to hear a case in which he is challenging his retirement age.
Asking Justice GBM Kariuki to disqualify himself yesterday, Tunoi said he fined him Sh500,000 in 1994 for contempt of court.
In an application he filed through senior counsel Pheroze Norwojee, he said he might not get justice if Kariuki does not disqualify himself.
Other judges hearing the case are Jamila Mohamed, Patrick Kiage, Milton Makhandia, William Ouko, Khaturima M’Inoti and Otieno Odek.
But Judicial Service Commission lawyers Paul Muite and Issa Mansur opposed the application, saying Tunoi brought up the argument to delay the case.
Muite said there are seven judges on the bench and Kariuki alone cannot influence the outcome.
“The case has this morning metamorphosed as the applicant had a chance to raise the issue on January 15 while filing the suit,” he said.
Mansur said the case will have implications for 40 judges and should not be delayed further.
Earlier in the morning, journalists and the public were kicked out of the hearing when Norwojee asked for a private hearing.
A JSC special committee has recommended that Tunoi be investigated by a tribunal over a Sh200 million bribe he allegedly received to give Nairobi Governor Evans Kidero a favourable judgement in his election appeal.
Tunoi and High Court judge David Onyancha have filed cases to retire at the age of 74, according to the old constitution, and not 70 as per the current document.
The JSC , which has ordered judges above 70 not to hear cases, is the respondent in the case. The Court of Appeal is hearing Deputy Chief Justice Kalpana Rawal’s retirement age case.
She wants the recruitment of her successor put on hold until her appeal is determined.
The DCJ turned 70 on January 15, the mandatory age for a judge to retire, according to the current constitution.
Senior counsel Ahmednasir Abdullahi, who represents the JSC in Rawal’s case, said the DCJ has no right of appeal as it is a constitutional case.
“The appeal is based on a constitutional matter on the rights and freedoms, which has no basis in law and should be struck out,” he said.
But Rawal’s lawyer George Oraro said an appeal is a constitutional right.
On December 11, High Court judges Richard Mwongo, Weldon Korir, Christine Meoli, Hedwig Ong’udi and Charles Kamau ruled that Rawal, Tunoi and Onyancha should retire at 70.
The case will be heard on Monday.