, NAIROBI, Kenya, May 27 – The court of Appeal has ruled that Deputy Chief Justice Kalpana Rawal and Supreme Court judge Philip Tunoi must retire having attained the age of 70 as provided for by the Constitution.
The court made the decision in a petition lodged by both judges who challenged a High Court decision that they leave office on attaining the age of 70.
“The High Court did not err in holding that the Constitution did not reserve and save the retirement age of judges prescribed by Section 62(1) of the former Constitution and that with effect from the effective date, the retirement age of all judges is 70 years. For these reasons, the appeal must fail,” the court ruled.
While dismissing the appeals of the two, the five judge-bench stated the two assumed office as Supreme Court judges under the new Constitution.
“Without subscribing to the oath of office, the vetted judges could not assume their offices. By the oath of office, every State officer including a judge signals personal commitment to defend the Constitution and to faithfully exercise and discharge the duties and functions of his or her office.”
In the ruling, the judges further stated that the retirement age of judges can only be set by the Constitution and that super ceded any other proclamation.
“The offices that were transited from the former Constitution were to be held under the current Constitution meaning that the retirement age of judges would be 70 years as set by Article 167. Both under the former and current Constitution, judges fell within the definition of public officers,” they said.
“That the makers of the Constitution did not deem it fit to include a provision similar to that in Section 19 of the Constitution of Kenya in the Independent Kenya Amendment Act 28 of 1964 must mean that the offices transited in section 31(1) of the Sixth Schedule were only those where the holders had an expired period if any of their term of office.”
READ: This isn’t just about me, Rawal says of challenge to retirement
Rawal had argued that the Judicial Service Commission’s move to retire her at age 70 was in contravention of Section 31 (1) of the Sixth Schedule of the Constitution.
She had 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 had alleged.