NAIROBI, Kenya, Jan 12 – The Court of Appeal has temporarily halted the recruitment of a new Deputy Chief Justice by the Judicial Service Commission, until January 29.
The decision was made pending the determination and ruling of an application by the JSC seeking to bar Kalpana Rawal from appealing a petition that maintained that she should retire at the age of 70.
JSC through lawyer Ahmednasir Abdullahi 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.