A five-judge bench led by presiding judge, Justices Richard Mwongo, Weldon Korir, Christine Meoli, Hedwig Ong’udi and Charles Kariuki who ruled Deputy Chief Justice Kalpana Rawal will retire at the constitutional age of 70.
BY SAM ALFAN.
Deputy Chief Justice Kalpana Rawal has lost his bid to block her retirement age after High court ruled she will retire at the constitutional age of 70.
A five-judge bench of Justices Richard Mwongo, Weldon Korir, Christine Meoli, Hedwig Ong’udi and Charles Kariuki ruled that Justice Rawal was bound to abide by the 2010 constitution when she took an oath of office.
The judges said Rawal took oath of office under the current Constitution which sets the retirement of judges at 70 years.
“You cannot take marriage vows and claim to be single. You cannot therefore turn around and impugn the very same Constitution you swore allegiance to,” The judges said.
The judges have however faulted the Judicial Service Commission for issuing retirement notices, ruling that it was the job of the head of the Judiciary to issue such notices.
“Rawal must respect the oath of office she took for the same was not a child play. It was constitutional estoppel” said the bench.
The court said JSC’s executorial powers are to discipline and train.
Rawal’s lawyer Kioko Kilukumi told the court that they will to file notice of Appeal Monday morning.
He says they will seek conservatory orders blocking Rawal’s removal pending determination of appeal or until they can make same application before Court of Appeal.
Kilukumi said they need conservatory orders because the Christmas vacation begins on December 18 to January 13 and that Rawal will turn 70, two days after the end of the vacation period.
They said that since the constitution pegs the retirement of the Chief Justice at 70 years, the holder of the position of the Deputy Chief Justice cannot be allowed to retire under a different age requirement because it will be perpetuating an illegality.
Nonetheless, the judges said the Judicial Service Commission (JSC) erred in going ahead to advertise her position saying due process was not followed.
“We therefore quash the decision to advertise the position of the Deputy Chief Justice (DCJ) and direct the Judiciary to issue fresh notices of retirement because the one that the JSC did was done without authority,” adding “The JSC and the Judiciary are two distinct organs and therefore it was wrong for the JSC to make a decision requiring that judges who have attained the age of 70 years should not preside over cases.”
The JSC had advertised the recruitment of her successor in September. She will be retired on January 16, 2016.
