Tunoi & another v Judicial Service Commission & another (Civil Appeal 6 of 2016) [2016] KECA 530 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that all judges must retire at 70, not 74, even if they were already serving when the 2010 Constitution took effect.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of section 31(1) and (2) of the Sixth Schedule vis-a-vis Article 167(1)
Section 31(1) applies only to offices whose holders serve a fixed term with an unexpired period, and the absence of a proviso similar to section 19 of the Constitution of Kenya (Amendment) Act No. 28 of 1964 shows the Constitution deliberately did not preserve the judges' former retirement age. Section 23 of the Sixth Schedule is the transitional provision applicable to judges.
The High Court's distinction between 'term' (fixed duration ending by effluxion of time) and 'tenure' (office ending on attainment of a specified age) was upheld. The 1964 Republican transition contained an express proviso saving retirement ages prescribed under the old order; its omission in 2010 was a deliberate choice by the makers of the Constitution that all judges should retire at 70. Foreign examples also show express provisions were used to exempt serving judges, underscoring that such preservation is not automatic.
Whether section 62(1) of the former Constitution and section 9 of the Judicature Act were saved as existing laws
Neither was transited or saved by section 7(1) of the Sixth Schedule; section 62(1) was repealed with the former Constitution and section 9, being anchored on section 62(1), has no independent existence.
Section 7(1) exists to avoid a legal interregnum but cannot perpetuate the old constitutional order in a new one. 'Existing law' excludes the Constitution itself. Where the Constitution intended to continue provisions of the former Constitution, it did so expressly in section 3 of the Sixth Schedule; section 62(1) is not among them. Section 9 of the Judicature Act expressly refers to section 62(1) and could not survive its repeal.
Property rights in the office of judge and in future service
No property right exists in the office of judge or in anticipated future service; accrued pension for service actually rendered is, however, vested property protected by the Constitution.
Following Kenyan and comparative authority, a public office is not property and a prescribed retirement age does not constitute a vested right. Pension earned during actual service is different: it is an absolute right under section 5(1) of the Pensions Act and protected by section 32 of the Sixth Schedule and Article 160(4), which guarantee the pension formula against variation to the judge's disadvantage.
Legitimate expectation from the JSC's earlier decision of 24th May 2011
No legitimate expectation arose because the JSC lacked competence to make a binding representation on the constitutional retirement age and no detrimental reliance was demonstrated.
The doctrine requires a representation competent and lawful for the decision-maker to make, plus detrimental reliance. The retirement age is fixed by the Constitution and its authoritative interpretation lies with the courts, not the JSC. The JSC's 2011 decision was merely a non-binding interpretation; advertisements for judicial vacancies had also clearly stated the retirement age as 70.
Fair administrative action (Article 47)
Although the JSC failed to hear the appellants before its decision and gave no written reasons, the omission was immaterial because the JSC's view was neither authoritative nor binding.
The Court found as fact that the appellants' representation of 17th April 2014 postdated the decision of 24th/27th March 2014, so the High Court erred in finding a hearing occurred. However, since the authoritative and conclusive determination of the retirement age is for the courts, the JSC's procedural failure had no legal consequence.
Discrimination under Article 27
Setting a retirement age of 70 for judges is not discrimination; the earlier retirement of two judges at 74 resulted from a bona fide misapprehension, not deliberate differential treatment.
Differential treatment is not per se discrimination; the Constitution itself fixes ages for many purposes. The respondents sought and obtained divided legal opinions before adopting their position, and since taking the view that all judges retire at 70 they have not permitted any judge to serve beyond 70 save under court orders, evidencing bona fides.
Whether a judge is appointed to the Judiciary generally or to a specific court
A judge is appointed to the specific constitutional office of judge of a specific superior court; appointment to another superior court is a fresh appointment, not promotion, relevant only to continuity of service for pension.
Jurisdiction vests in a specific court, not the Judiciary as an institution; the qualifications for each superior court differ under Article 166; and no career-progression scheme exists for superior court judges. The Supreme Court's office did not exist under the former Constitution and is not a successor office within section 31 of the Sixth Schedule.
Legal principles established
#- With effect from the effective date of the Constitution of Kenya, 2010, the retirement age of all judges is 70 years; the 74-year retirement age under the former Constitution and section 9 of the Judicature Act was not preserved by the Sixth Schedule.
- Section 7(1) of the Sixth Schedule cannot transit the former Constitution or any of its provisions into the current Constitution as an existing law; only provisions expressly saved in section 3 of the Sixth Schedule continue.
- A judge is appointed to a specific superior court and holds a specific constitutional office; appointment to a different superior court is not a promotion or elevation.
- The office of a judge is not property; a judge has no vested right to hold office until a retirement age prescribed at appointment, and no right to salary or pension for a period not actually served.
- Pension accrued for service actually rendered is a vested property right protected by the Constitution, but there is no pension right in respect of a period in which no service has been rendered.
- A State organ's interpretation of the Constitution is not final or authoritative; the final and authoritative interpretation rests with the Judiciary, so no legitimate expectation can arise from such an interpretation.
- Comparative foreign precedent on reduction of judicial retirement age is not binding and cannot be applied wholesale; the Constitution of Kenya must be interpreted primarily in its own historical context.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Each party to bear its own costs
- On appeal from
- High Court of Kenya
- Petition No. 244 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under Article 164 of the Constitution from a High Court petition (constitutional petition on judicial retirement age); the judgment does not invoke Article 163(4) Supreme Court jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kuria v Kenya Broadcasting Corporation (Civil Appeal 382 of 2018) [2026] KECA 971 (KLR)[2026] KECA 971 (KLR)15 May 2026
- Ngokonyo & 2 others v Telkom Kenya Limited[2025] KESC 75 (KLR)11 Dec 2025followed
- Njaggah v Board of Directors of Water Services Regulatory Authority & 2 others (Civil Appeal E108 of 2024) [2025] KECA 1258 (KLR)[2025] KECA 1258 (KLR)11 Jul 2025applied
- King’uri v Unaitas Sacco Society Limited (Employment and Labour Relations Cause E019 of 2022) [2025] KEELRC 1900 (KLR)[2025] KEELRC 1900 (KLR)25 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Tunoi & another v Judicial Service Commission & another (Civil Appeal 6 of 2016) [2016] KECA 530 (KLR)", Case Analysis (2016). Appeal No. 2 of 2016 (arising from Petition No. 244 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/530/eng@2016-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.