I think they have lost. Why
For there to be a quorum three new judges have to be recruited.
There are now only two who have declared themselves competent to hear the case - Njoki and Ojwang. Ibrahim and Smokin have recused themselves.
There is no way that number can be reached without replacing Rawal and Tunoi as well as the CJ.
Even then they will not be in the clear for an inefficacious positive result. Why because the majority (all new judges)+ Smokin who did not recuse himself on that issue, could still disqualify Njoki and Ojwang from hearing it thus going back to another lack of quorum in that case.
My advice would be that Rawal and Tunoi go home and use the fact that there was no SCK appeal to lighten their burden. They were out-foxed. When 12 judges rule against you with the real possibility that some of them will end up at the SCK, it is hard to contemplate a victory. In event a High Court of CoA judge who ruled against them is recruited, that seals the case for good as there will never be a quorum of judges not prejudiced.
May be I have missed one or two scenarios but frankly Tunoi and Rawal should start thinking about the country.
I think there is a limbo. They are entitled to an appeal in supreme court. They cannot appeal because 3 of 5 judges reclused themselves. So the appeal has not been heard. So they have to wait until such a time that a proper supreme court can sit, hear their appeal and make a ruling.
What happens with the Tunoi corruption probe? Does it now become part of the joke that is the Kenyan judicial carousel as a criminal enjoys retirement benefits he is not entitled to?
