, NAIROBI, Kenya, Sept 17 – Justice Isaac Lenaola has found that Deputy Chief Justice Kalpana Rawal’s application seeking to stop the recruitment of her successor would best be heard before more than one judge.
Lenaola has therefore referred the matter to Chief Justice Willy Mutunga who will be required to constitute a bench.
The Judicial Service Commission through lawyer Ahmednasir Abdullahi had argued that Rawal’s petition is not weighty enough to require a bench but Justice Lenaola has found otherwise:
“Looking at the matters raised in this petition I am satisfied that the question whether judges should retire at 70 for those who were there before 2010 and whether JSC has the mandate to retire them, those in my view, are important questions for the public. They are novel and unique, they’ve never been addressed by any court and therefore it’s important that they should be addressed by judges more than one.”
Lenaola also disagreed with Abdullahi view that the time it would take to empanel a bench would be an unnecessary waste of time.
“In my understanding and in my experience, matters heard by more than one judge don’t necessarily have to be delayed. In fact it’s all about court and case management,” he found.
The JSC had argued that the matter should be heard before the Employment and Labour Relations Court, framing it as a dispute between employer and employee.
“We need to conclude this matter as quickly as possible. The matter is very simple. Is she 70 years old or she is not? That doesn’t require a five judge bench to determine,” Abdullahi had argued.
Rawal through her lawyer George Oraro disputed this argument, labelling it an oversimplification of the matters under contention.
“This matter goes beyond Justice Rawal. It goes to the very basis of the application of the current Constitution and its transitional provision. She is not claiming her right under the old Constitution, she’s claiming her right under this Constitution and Judiciary is so fundamental that any matter concerning it cannot be flippantly treated,” he countered.
Following Lenaola’s referral of the matter to the Chief Justice, the matter will now come up for mention on September 23 for directions.