Rawal says she’s filed the case in order to defend the Constitution which she swore to protect and in the interest of more than 40 judges who were in office prior to the promulgation of the Constitution in 2010/CFM
Rawal says she’s filed the case in order to defend the Constitution which she swore to protect and in the interest of more than 40 judges who were in office prior to the promulgation of the Constitution in 2010.
“I have instituted these proceedings on an issue that is at the heart of the independence of the Judiciary: namely, security of tenure,” she stated in a supplementary affidavit.
She’s argued that the Judicial Service Commission’s move to retire her at age 70 is in contravention of Section 31 (1) of the Sixth Schedule of the Constitution which states:
“A person who immediately before the effective date, held or was acting in an office established by the former Constitution shall on the effective date continue to hold or act in that office under this Constitution for the expired period , if any, of that person.
A period which she states should expire when she attains the age of 74 as was the case at the time of her hiring, under the old dispensation.
She’s pegged as, “immaterial,” the fact that the office of the DCJ is a creation of the current Constitution arguing that, “tenure attaches to a judge and not to the judicial office that the judge serves in.”
The Judicial Service Commission’s advertisement of her job, she said, was therefore illegal as no vacancy existed.
“It is immaterial that the process of appointing a Deputy Chief Justice is long and tedious,” she said. “Remarkably, no advertisements have been made for the positions of Supreme Court Justice (Philip) Tunoi and High Court Justice (David) Onyancha,” who have also challenged their retirement at age 70.
READ: Judges Tunoi, Onyancha challenge retirement
As it did with Tunoi and Onyancha therefore, she’s argued, the court should preserve her position until her petition is heard and determined.
Presiding Justice Richard Mwongo on Wednesday however found that the process of identify her successor commenced with the placement of the aforementioned advertisement and she would suffer no further prejudice should her application for conservatory orders be heard after the expiry of the application deadline.
He therefore set September 30 as the date for the hearing for her application for orders stopping the recruitment of her successor.
It will be heard before Mwongo, presiding, as well as Justices Weldon Korir, Charles Kariuki, Christine Meoli and Hedwig Ogundi.
Rawal has also refuted the Chief Registrar of the Judiciary Atieno Amadi’s assertions that she is on terminal leave and challenged the Judicial Service Commission to prove that she made a commitment to retire at 70 when she interviewed for the position of Deputy Chief Justice as they have alleged.
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