, NAIROBI, Kenya, Jan 29 – The Court of Appeal on Friday dismissed an application by the Judicial Service Commission (JSC) that sought to bar Deputy Chief Justice Kalpana Rawal from appealing a petition that she should retire at the age of 70.
The five-judge bench maintained that Rawal had the right to appeal as enshrined in the Constitution.
Court of Appeal Judge GBM Kariuki also ordered that the appeal be heard on February 15 while JSC was barred from taking any action until the matter is heard and determined.
“I have come to the conclusion that the right of appeal is subsumed in Article 164 (3) which also confer jurisdiction to this court to hear appeals from decision of the high court on the bill of rights. Accordingly, I do not find merit in the motion dated December 23rd 2015,” he ruled.
The entire bench agreed that the court will be infringing on the rights of Rawal, if she is barred from appealing the High Court ruling.
Lawyer Ahmednasir Abdullahi who represented JSC says they will respect the ruling though they don’t agree with it.
“The Appeal will be heard on 15 of February and the matter will heard once and for all. There is a major shift of the law…they have overturned almost every law that was known to this court,” he said.
“They have established a new decision today that the court has refused to accept for many years. We have no problem, we will accept it and move on.”
Abdullahi had contended that Rawal’s application is defective and her right to appeal is not expressly espoused in the Constitution.
“We oppose the motion since she has no right of appeal in this court. Her application is defective and the court does not have the jurisdiction to hear the matter,” he argued.
“There is a huge difference between jurisdiction and right of appeal,” he further stated.
Rawal’s lawyer George Oraro however opposed the application stating that the right to appeal is espoused in the Bill of Rights and it is a fundamental right to each Kenyan.
He stated that the new constitution took the rights of Kenyans seriously and any move to deny anyone its provisions would plunge the country into anarchy.
Rawal lost a bid challenging her retirement at 70 in the High Court with a five-judge bench saying she was appointed and took oath of office under the new constitution.
The judges said the provisions of the previous constitution, which allowed judges to retire at 74, therefore did not apply to her.
She had sought temporary orders restraining the JSC from advertising the job pending the determination of the appeal.
Seven women applied to replace Rawal in September last year.
In the High Court ruling, Judges Richard Mwongo, Weldon Korir, Christine Meoli, Hedwig Ong’udi and Charles Kariuki ruled that she bound herself to abide by the 2010 Constitution when she took a fresh oath of office.
They had noted that no judge can go against an oath with substantial legal and constitutional implications.