, NAIROBI, Kenya, Oct 1 – A five-judge High Court Bench has suspended by 45 days the notice of retirement given to Deputy Chief Justice Kalpana Rawal by the Judicial Service Commission (JSC).
It has also suspended the recruitment of her successor for the 45 days within which it hopes to hear and determine Rawal’s petition, challenging her retirement at 70 years of age in January.
Finding the issues raised by the petition to be, “urgent, weighty and of immense public interest,” the Bench led by Justice Richard Mwongo and consisting of Justices Weldon Korir, Charles Kariuki, Christine Meoli and Hedwig Ogundi set it for an expeditious hearing on October 26 and 27.
Rawal has opposed her retirement on the grounds that she was appointed to the Bench prior to the promulgation of the Constitution in 2010 and should therefore retire at age 74.
“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to the Constitution, my tenure which was provided at the time of my appointment as a judge in the year 2000 under the repealed Constitution as 74 years, was saved by the Constitution, irrespective of the court hierarchy or office that I serve as a judge,” she said in a supplementary affidavit in response to the JSC contention that the post of DCJ is a creation of the current Constitution and the retirement age of 70 should therefore apply to the office bearer.
The JSC has also argued that when Rawal applied for the post in 2013, the advertisement made clear that the current retirement age of 70 would apply.
JSC Secretary Atieno Amadi has also submitted that Rawal responded in the affirmative when she was made aware of the retirement age during her interview for the post.
Rawal has countered that whatever she may have said during the interview cannot supersede the provisions of Section 31(1) of the Sixth Schedule as quoted above.
The decision to challenge her retirement at 70, Rawal has submitted, is not motivated by, “personal gain,” but by her commitment to defend the law.
“A determination on this Constitutional question on the retirement of judges transiting from the old Constitutional order will bring certainty and settle the law which affects at least 40 judges,” her affidavit reads.
The JSC was opposed to the suspension of what they painted as a tedious process of securing Rawal’s replacement arguing that should the bench eventually find in her favour, a successor having already been appointed, there was the recourse of awarding her damages for the pension lost.