Senior Counsel Ahmednasir Abdulahi for Judicial service commission and Kioko Kilukumi for Deputy Chief Justice Kalpana Rawal who is challenging her retirement at the age of 70 leaving Milimani law courts on Wednesday September 16, 2015.
High court is expected on Wednesday to rule on whether the suit filed by Deputy Chief Justice Kalpana Rawal challenging the decision of Judicial Service Commission to issue her retirement notice to take effect on 2016.
Rawal moved to court on Monday through her lawyers Kioko Kilukumi and George Oraro, told Justice Isaac Lenaola, that the Judicial Service Commission has violated section 3(1) of the sixth schedule to the constitution by choosing to retire her after attainment of the 70 years.
She has also sued the secretary to the JSC who issued the communication an placed an advertisement in Sunday Standard of 13 September 2015.
Judicial Service Commission has faulted Deputy Chief Justice Kalpana Rawal in her bid to stop the recruitment of her successor.
“Justice Rawal is currently on a terminal leave while another Supreme Court Judge Philip Tunoi is not sitting” said Ahmednassir while opposing.
The commission also, through lawyers Ahmednassir Abdullahi, Prof Tom Ojienda and Charles Kanjama, objected to the DCJ’s application being heard at the constitutional court.
“Her application is without merit, misconceived and an abuse of the court process meant to frustrate the JSC,” said Ahmednassir.
“This is a dispute between an employer and an employee, which should be heard at the Employment and Labour Relations Court.
Senior Counsel Ahmednassir further opposed Justice Rawal’s application to have the case heard by at least three judges saying the matter doesn’t have any issues that can be heard by the bench of uneven number of judges.
He argued that the case did not raise weighty constitutional questions to warrant a bench.
But the DCJ, through lawyers George Oraro and Kioko Kilukumi, insisted the matter be referred to Chief Justice Willy Mutunga to constitute a bench.
The lawyers said the matter involved the interpretation of when judges appointed under the former constitution should retire.
“This dispute goes beyond Justice Rawal, it is an issue which goes beyond employment dispute but to the core of constitutional interpretation which warrants a bench of uneven judges,” said Mr Oraro.
Judiciary Registrar Anne Amadi swore that Justice Rawal had agreed to retire at the age of 70 when she applied for the post of DCJ.
She wondered why Justice Rawal changed her mind when the commission served her with a retirement notice and advertised for the position.
“The question of her retirement age was put to her during the interview to which she answered that she would retire at 70.
Justice Lenaola will rule on whether to transfer the case to the Chief Justice Dr Willy Mutunga to appoint a bench of uneven judges to hear the matter for once.