A showdown has erupted between Appeal Court judges and Chief Justice Willy Mutunga over their move to new offices at Elgon Place in Upper Hill.
The Appeal Court was formerly the highest court in the land until the establishment of the Supreme Court in 2011. The judges have not been completely comfortable beneath the higher authority of the CJ. When Mutunga set up regional appeal courts in 2012, they were reluctant to report to those stations.
Now the judges have picked a fight over their new offices, ostensibly because nearby telecommunications masts might pose a health risk.
On Wednesday, the CJ directed that the Court of Appeal judges should leave the Supreme Court building by Tuesday next week. The instruction came through an email from the Court of Appeal President Paul Kihara Kariuki on Wednesday.
The judges refused to move citing radiation from nearby telecom masts which they claim will cause cancer if they are continuously exposed. The offices are new being tested by experts to see if there is an risk.
"Those CA judges who feel they cannot move are free to take leave of absence from Elgon House until the inspection is done. There will be no disruption of cause lists as the courts will be available at the Supreme Court for use. Judges can attend these hearing from their residences," Kihara wrote in the email communicating the CJ's instruction to his colleagues.
The mail said that any Appeal Court judges who do not want to move to the new building should ask for transfers to Malindi, Nyeri and Kisumu where new Appeal Courts were recently established.
The Communication Commission of Kenya on July 25 declared the building safe for occupation because the radiation levels are within acceptable limits.
CCK said that the radiation levels recorded at the Elgon Place Building averaged 1.7 waves per square metre, much lower than the World Health Organisation's recommended maximum of 4.5 waves per square metre.
However the judges still vowed to stay put and yesterday the Chief Justice was forced to convene a meeting with them yesterday to try and convince them to move even as technical inspection is being concluded. But the judges still refused to move to Upper Hill.
"We have told him that we would rather work from our houses instead of going to that new building to die of cancer," said one judge.
Yesterday Justice Paul Kihara refused to comment. "I will not comment on that issue now. If we have any statement, we will call you," Kihara told the Star.
The Law Society of Kenya also waded into the controversy yesterday asking Mutunga to suspend the move until it was confirmed that the judges' health was not in danger.
"The Law Society is aware of the conflicting reports raising concerns from Communication Commission of Kenya, Radiation Protection Board and Memo from the President of the Court of Appeal. The Chairman has requested for suspension of the relocation to await an independent assessment of the radiation concerns in the premises." the LSK said in a letter to its members.
LSK added that the CJ had issued the directive not withstanding unresolved concerns of the possibility of radiation exposure.
"Therefore this is to notify you that you may be exposed to high level radiation that could be harmful to your health," LSK Secretary Apollo Mboya warned.
The Radiation Protection Board under the Ministry of Health has advised that radiation exposure from all telecommunication service providers adjacent to Elgon Place be included in the inspection.
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