, NAIROBI, Kenya, Dec 4 – Deputy Chief Justice Kalpana Rawal will wait another week before the High Court makes its determination on whether she will retire next month or in another four years.
A five judge bench led by Principal Judge Richard Mwongo was to deliver its judgment on Friday but postponed it by a week.
Mwongo said that, “while we are largely done, there are a few loose ends that we need to tie up.”
He apologised to the parties for the delay, rescheduled the delivery of judgment to Friday, December 11, and extended the orders restraining the Judicial Service Commission from recruiting a replacement for Rawal.
Rawal petitioned the High Court after the Judicial Service Commission notified her that it would be retiring her in January when she attains 70 years of age.
She challenged her retirement on the grounds that she assumed office prior to the promulgation of the current Constitution and should therefore retire at 74.
The Constitutionally stipulated retirement age of 70 for judges, she contends, should only apply to those who took up office after its promulgation in August of 2010.
“By virtue of Section 31(1) of the Sixth Schedule to the Constitution, my tenure which was provided at the time of my appointment as a judge in the year 2000 under the Repealed Constitution as 74 years, was saved Constitution, irrespective of the court hierarchy or office that I serve as a judge,” she swore in an affidavit.
The Judicial Service Commission through an affidavit sworn by the Chief Registrar of the Judiciary Atieno Amadi has countered this argument on the grounds that the office of the DCJ for which Rawal applied is a creation of the current Constitution and when she was sworn into that office, under a new law, she by default acquiesced to retire at 70.
The High Court on Friday next week will not only be making a determination in Rawal’s case as their decision will affect about 40 other judges who assumed office before August of 2010.
Rawal’s fellow Supreme Court Justice Philip Tunoi and High Court Justice David Onyancha have also challenged their retirement at 70.
Having heard both cases subsequently, the Mwongo chaired bench will deliver a judgment on them both.