CHIEF Justice Willy Mutunga has opted for early retirement.
According to multiple sources in the Judiciary, the CJ wants to leave office by December next year, six months before his term expires.
The CJ’s term is due to expire on June 22 2017, just months before the General Election. The move has sparked a flurry of succession activity, with various judges quietly expressing their interest in the Judiciary’s top job.
â€œThe CJ has already met President Uhuru Kenyatta and informed him of his decision to leave early,” said a Court of Appeal judge known to be close to the CJ.
The meeting took place in mid-January and was also attended by Attorney General Githu Muigai, at State House, Nairobi.
Apart from the CJ telling his President about his decision, the three also discussed a list of judges Kenyatta refused to appoint and the then vacant positions in the Judicial Service Commission that required him to appoint two commissioners.
“The President was quite shocked, and wanted to know why Mutunga wanted to retire early,” said a source in the CJ’s office.
It is unclear why Mutunga wants to leave early but it is understood that the CJ does not want to be involved in any way in the next election.
“He also wants to allow the next CJ to have enough time to prepare for the election and a possible challenge to the outcome of the Presidential poll then,” said an aide to the CJ.
Mutunga is reported to have told the President that he has effected the reforms he wanted to achieve and he wants to move on and do other things.
Mutunga was appointed Chief Justice and President of the Supreme Court on June 22 2011, in what is still considered the most rigorous public scrutiny of an individual for public office in Kenya. ??As Chief Justice, he is the head of the Judiciary and also President of the Supreme Court. He presided over the Presidential petition filed by opposition leader Raila Odinga in 2013 which confirmed Kenyatta’s victory.
The Supreme Court has seven judges.
Mutunga will turn 70 in June 2017, his Deputy Kalpana Rawal will be 70 in January next year and Justice Philip Tunoi is already 71.
The others are Smokin Wanjala, 55, J.B. Ojwang, early 60s, Mohammed Ibrahim, 68, and the youngest of them all, Njoki Ndungâ€™u, 49.
Two camps have emerged in the battle to succeed Mutunga. The first has Wanjala and Appellate Judge Patrick Kiage, who have been branded â€˜outsidersâ€™. The second group, dubbed â€˜the insidersâ€™, has Paul Kariuki, Alnashir Visram and William Ouko.
President Kibaki appointed Visram CJ in 2011 but his appointment was successfully opposed by the then Prime Minister Raila Odinga, paving way for Mutungaâ€™s recruitment.
Although Justice Isaac Lenaola was tipped to be among the contenders, people close to him say the judge may not be interested.
The recent order by the Chief Justice to some judges to retire is linked to his succession.
Supreme Court Judge Tunoi is one of them and has challenged the order in court, citing, among other things, two conflicting constitutional requirements over the retirement age that affect 38 other judges.
The argument is that since they were hired under the old constitution, which prescribed the retirement age as 74, they should be allowed to continue serving as agreed by the JSC back in 2011.
Tunoi and team say officials have ignored the JSCâ€™s own recommendations and are now humiliating them. They have cited what they say are clear double standards on the matter.
Apart from Tunoi others who have received the letters asking them to vacate office on their 70th birthday include Appeal Court Judge John Mwera and High Court Judge David Onyancha.