Rawal & 2 others v Judicial Service Commission & 2 others; Okoiti (Interested Party); International Commission of Jurists & 2 others (Amicus Curiae)
The bottom line
#Supreme Court lacked quorum due to recusals, so Court of Appeal ruling on judge retirement age stands.
What this practically means
#The Supreme Court was asked to hear a case about whether judges appointed under the old Constitution must retire at 70. But several judges stepped aside because their past roles could make them seem biased. With too few judges left, the Court could not make a decision. As a result, the earlier Court of Appeal ruling remains in effect until a properly formed Supreme Court bench hears the case.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Chief Justice acted without jurisdiction in issuing administrative directions of 30th May 2016 that varied the hearing date set by a single judge.
- 2.Whether the directions of the Chief Justice amounted to an interference with the decisional independence of a judge under Article 160(1) of the Constitution.
- 3.Whether the Supreme Court has jurisdiction to entertain the applications given that all its judges are allegedly conflicted and not impartial under Article 50(1) of the Constitution.
- 4.Whether the doctrine of necessity should be invoked to allow the court to sit despite allegations of bias.
- 5.Whether the interested party's preliminary objection meets the test for a preliminary objection as established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd.
Key legal issues
#Whether the Chief Justice's administrative powers under Rule 4 of the Supreme Court Rules permit him to vary a hearing date set by a single judge in a judicial order.
The court was evenly split on this issue, with two judges (Mutunga CJ and Wanjala SCJ) holding that the Chief Justice acted within his administrative powers, and two judges (Ojwang SCJ and Ndungu SCJ) holding that he did not. Ibrahim SCJ recused himself. No binding determination was made.
Mutunga CJ held that the power to determine sittings under Rule 4 includes the power to fix hearing dates, and that this did not interfere with the single judge's judicial orders. Ojwang SCJ and Ndungu SCJ held that administrative powers cannot override a judicial decision, and that the proper recourse was for an aggrieved party to seek review by a five-judge bench under Section 24(2) of the Supreme Court Act. Wanjala SCJ held that the directions were purely administrative and did not interfere with the decisional orders of the single judge.
Whether the entire Supreme Court bench should disqualify itself from hearing the matter on grounds of perceived bias under Article 50(1) of the Constitution.
The interested party's preliminary objection seeking disqualification of the entire bench was allowed. The court found that the bench could not be properly constituted due to conflicts of interest, leading to the vacation of the ex parte orders and the Court of Appeal judgment standing.
Mutunga CJ, Ibrahim SCJ, and Wanjala SCJ each recused themselves, finding that their prior involvement (membership in the JSC, co-authoring a memorandum on retirement age, or expressing views in a previous case) created a perception of bias. Ojwang SCJ and Ndungu SCJ held that the preliminary objection did not meet the test in Mukisa Biscuit and that the court had jurisdiction. However, with three judges recused, the court lacked quorum to proceed.
Whether the doctrine of necessity should be invoked to allow the court to sit despite allegations of bias.
The doctrine of necessity was not applied. The majority of judges who addressed the issue (Mutunga CJ, Ibrahim SCJ, Wanjala SCJ) held that the circumstances did not warrant its invocation, as the perception of bias was too strong and would undermine public confidence in the administration of justice.
Mutunga CJ distinguished the case from Jasbir Singh Rai, noting that here there were uncontroverted facts supporting the claim of bias. Ibrahim SCJ held that the doctrine could not override the constitutional guarantee of an impartial tribunal. Wanjala SCJ held that the doctrine could not override the overwhelming demands of natural justice. Ojwang SCJ and Ndungu SCJ held that the doctrine should apply, but they were in the minority on this point.
Legal principles established
#- If the Supreme Court cannot form a quorum due to recusals, the Court of Appeal judgment stands until a competent bench decides otherwise.
- A judge must recuse themselves if their prior involvement creates a reasonable perception of bias, even if they believe they can be impartial.
- The doctrine of necessity cannot override the constitutional right to an impartial tribunal when bias is strongly perceived.
- A preliminary objection must meet the strict test from the Mukisa Biscuit case: it must raise a pure point of law without contested facts.
- The Chief Justice's administrative power to set hearing dates does not extend to overriding a judicial order made by a single judge (split decision, no binding precedent).
Court orders
#- 1.The Preliminary Objection by the interested party (Mr. Omtatah) together with the application No. 13 is hereby allowed.
- 2.The ex parte Orders granted by the Duty Judge, on 27th of May, 2016, are hereby vacated.
- 3.The Judgment of the Court of Appeal shall stand until it is either affirmed, or reversed by a competent Bench of this Court.
- 4.In view of the fact that 2 members of this Bench were minded to allow preliminary objections No. 11 and 12, while 2 others were equally minded to disallow the said preliminary objections, and the 5th member has recused himself from making a finding on the objections, there is no determination that has been made regarding preliminary objection No. 11 and 12.
- 5.Costs shall be in the cause.
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the judgment
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. 1 of 2016 and Civil Appeal No. 6 of 2016
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- Civil Application 12 of 2016
Relief refused
#The applicants' preliminary objections challenging the Chief Justice's directions of 30th May 2016
The court was evenly split (2-2) with one judge recused, resulting in no determination on those objections.
Costs
Costs shall be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Preliminary Objection by the interested party (Mr. Omtatah) together with the application No. 13 is hereby allowed.
The ex parte Orders granted by the Duty Judge, on 27th of May, 2016, are hereby vacated.
The Judgment of the Court of Appeal shall stand until it is either affirmed, or reversed by a competent Bench of this Court.
In view of the fact that 2 members of this Bench were minded to allow preliminary objections No. 11 and 12, while 2 others were equally minded to disallow the said preliminary objections, and the 5th member has recused himself from making a finding on the objections, there is no determination that has been made regarding preliminary objection No. 11 and 12.
Costs shall be in the cause.
Key timeline
#Practical implications
#Recusal strategy and quorum risks
When multiple judges recuse themselves, the court may lose quorum, leaving the lower court's decision in place. Lawyers should anticipate this when filing preliminary objections on bias. If you seek recusal of several judges, be prepared for the case to stall or the appeal to be dismissed by default. Consider whether the doctrine of necessity might be argued, but note the court's reluctance to apply it when bias perception is strong.
Legal certainty from appellate rulings
When the Supreme Court cannot form a quorum, the Court of Appeal's decision becomes the final word for now. Businesses relying on that ruling (e.g., on retirement age affecting leadership contracts) should treat it as binding until the Supreme Court later affirms or reverses it. This creates temporary certainty but also risk if the Supreme Court eventually changes the law.
Impact on judge retirement age
The underlying dispute is about whether judges appointed before the 2010 Constitution must retire at 70. Because the Supreme Court could not decide, the Court of Appeal's ruling that they must retire at 70 remains in effect. Individuals involved in cases before such judges should note that those judges may now be required to step down, potentially affecting ongoing proceedings.
Frequently asked questions
#What happens when Supreme Court judges recuse themselves in Kenya?+
If judges recuse themselves and the remaining judges cannot form a quorum (at least five), the Supreme Court cannot hear the case. The Court of Appeal's decision then stands until a properly constituted Supreme Court bench can hear the matter.
Can the Chief Justice change a hearing date set by a judge in Kenya?+
The Supreme Court was evenly split on this. Two judges said the Chief Justice can use administrative powers to set hearing dates, while two said he cannot override a judicial order. No binding decision was reached, so the issue remains unresolved.
What is the retirement age for judges in Kenya?+
The Court of Appeal ruled that judges appointed under the old Constitution must retire at 70. The Supreme Court could not decide on this because of recusals, so the Court of Appeal's ruling currently stands.
What is the doctrine of necessity in Kenyan law?+
The doctrine of necessity allows a court to hear a case even if judges might be biased, when no other court can decide. In this case, the Supreme Court majority refused to apply it, saying the right to an impartial tribunal is more important.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kakuzi PLC v Kituamba Kaloleni IDPs & 2 others (Environment and Land Appeal E064 of 2024) [2026] KEELC 5165 (KLR)[2026] KEELC 5165 (KLR)30 Jul 2026
- Ouya & another v Oseko & 4 others (Civil Appeal E697 & E715 of 2021 (Consolidated)) [2025] KECA 1724 (KLR)[2025] KECA 1724 (KLR)24 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Rawal & 2 others v Judicial Service Commission & 2 others; Okoiti (Interested Party); International Commission of Jurists & 2 others (Amicus Curiae)", Case Analysis (2016). Civil Application 11 & 12 of 2016 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2016/1/eng@2016-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.