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Deputy Chief Justice Kalpanal Rawal.

The Supreme Court has suspended a decision sending two of its judges Deputy Chief Justice Kalpana Rawal and Philip Tunoi home for attaining the mandatory judge retirement age of 70yrs.

The stay order was granted by duty Judge Njoki Ndung’u pending the hearing of an application challenging a decision by the Court of Appeal to send them on retirement.

The two rushed to court on Friday afternoon moments after the Court of Appeal ruled they should pack up and leave.

As per the order, the positions they currently hold will not be advertised pending the outcome of the case.

Judge Tunoi is under investigation following allegations that he received a Sh200 million bribe from Nairobi Governor Evans Kidero to rule in his favour in a poll petition.

The tribunal was sent into confusion following the order but can now resume its sittings on Tuesday as planned since Tunoi will not yet go home. The order would have rendered the tribunal redundant.

According to the Court of Appeal, the retirement age of judges is 70 and not 74 as proposed by the DCJ.

It is after the high court ruled that the judges should go home that they contested the decision at the court of appeal.

However, with the retirement of Supreme Court President Chief Justice Dr Willy Mutunga set for next month, this means that the court is now in a crisis with the procedure outlining that the minimum number that can sit is five judges. CJ Mutunga will retire next month.

The two argued that they should retire at 74 year per their contracts, which they signed under the former constitution.

Deputy Chief Justice Rawal is 70 while her colleague judge Tunoi is 72.

On December 11, a five-judge bench ruled that Rawal, Tunoi and High Court judge David Onyancha should retire at 70.

But a few months after appealing the decision, Onyancha, who had reached 70, resigned.

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