The Supreme Court yesterday upheld the Court of Appeal’s decision that judges should retire at the age of 70.

A majority of the Supreme Court judges; Willy Mutunga, Mohamed Ibrahim and Smokin Wanjala disqualified themselves from hearing the case on grounds that their opinions with regards to the retirement age  of judges was in the public domain and were therefore likely to be perceived as bias in their ruling.

They went ahead to lift the temporary orders, suspending the ruling of the appellate court that set the retirement age at 70 but said that the appeal by Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi would be heard by a future bench.

“The decision of the Court of Appeal stands but I will not say it’s final. The applicants have a right to appeal to a Supreme Court differently constituted,” he directed.

Justice Kalpana Rawal and Justice Philip Tunoi moved to the Supreme Court to contest a ruling by the Appeal Court in May, which ruled that the two should retire at the age of 70.

“The High Court did not err in holding that the Constitution did not reserve and save the retirement age of judges prescribed by Section 62(1) of the former Constitution and that with effect from the effective date, the retirement age of all judges is 70 years. For these reasons, the appeal must fail,” the appellate court ruled.

Rawal and Tunoi argue that they assumed office under the old constitution and therefore the age retirement threshold does not apply to them.