The five judge bench led by presiding principal Judge, Justice Richard Mwongo, Christine Meoli, Hedwig Ongudi, Weldon Korir and Charles Kariuki who suspende
Deputy Chief Justice Kalpana Rawal replacement for 45 days who is challenging her retirement at the age of 70 leaving Milimani law courts on Wednesday October 1, 2015.
BY SAM ALFAN.
High court has suspended a retirement notice by Judicial Service Commission to requiring the Deputy Chief Justice Kalpana Rawal to retire at the age of 70 years for a period of 45 days.
The five bench further suspended a recruitment exercise advertised on the local daily seeking to recruit candidate to replace the deputy chief Justice for the next 45 days pending the hearing and determination of the suit challenging the JSC decision to retire her.
The Judges presiding over the principal Judge, Justice Richard Mwongo, Christine Meoli, Hedwig Ongudi, Weldon Korir and Charles Kariuki directed the main petition to be heard on 26 and 27 of this month.
Deputy Chief Justice Kalpana Rawal moved to court challenging the decision of Judicial Service Commission to issue her retirement notice to take effect on 2016.
Through her lawyer 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 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.
A lobby group was enjoined as friend of the court in Deputy Chief Justice Kalpana Rawal’s case challenging her retirement age.
Kituo Cha Sheria through their lawyer John Khaminwa made an application to be enjoined in the matter stating that it has legal responsibility to the public.
The hearing of the case by a five Judge bench commenced yesterday.
The Judges presiding over the matter are, Richard Mwongo as the Principal Judge, Christine Meoli, Hedwig Ongudi, Weldon Korir and Charles Kariuki.
Kalpana’s lawyer George Oraro told the court that the list of some of the judges who have applied for the Deputy Chief Justice position were published in a local daily which might lead to anarchy.
He requested for conservatory orders stating that the Law Society of Kenya has already requested their members to boycott judges who are above 70 years.
He said the Judicial Service Commission did not communicate to the Deputy Chief Justice Kalpana Rawal that the terms of retirement had changed from 74 years to 70 years.
He said Kalpana was not appointed under a competitive action but was promoted to her current position.
“Kalpana Rawal never agreed to retire at the age of 70 as stated by the Judicial Service Commission. That was just an aversion,” he said.
However Judicial Service Commission Lawyer Ahmed Nassir opposed Rawals application stating that it has no basis in the law and no cause of action can be found in the constitution.
He said JSC communicated to Rawal what the constitution stipulates on the retirement age.
He said orders that Rawal’s requested were mostly spent and she had not shown how her rights would be infringed in the recruitment process.
Rawal wants the Judicial Service Commission stopped from continuing the process of securing her replacement.
She also wants the Court to issue a declaration to JSC effectively stating that it has no constitutional and statutory role in the allocation of judicial duties to individual judges and cannot therefore purport to issue notice for retirement.
“It is a matter of Judicial notice that several Judges who were in office as at the effective date have retired at the age of 74 years and the JSC action to retire me at the age of 70 years is discriminatory and violation of the constitution,” she said in affidavit.
The matter to be heard by the five judge on 26 of October for highlighting their written submissions..
