NAIROBI, Kenya, Apr 9 – The High Court has ordered an application filed by Appellate Judge Erastus Githinji on his retirement be placed before the Employment and Labour Relations Court for determination.
Justice Pauline Nyamweya of the Judicial Review Division said that the matter will be best heard and determine for the Labour Court.
She directed that parties appear before the duty judge on April 11, 2019 for further directions.
Justice Githinji filed the application seeking to quash the decision of the Judicial Service Commission to order his retirement on July 1, 2019.
The JSC in a letter dated October 30, 2018 has communicated to the judge over his retirement, which he says was not properly calculated according to his certificate of birth.
The judge through his lawyer Patrick Kahonge says his legal date of birth is December 30, 1949 meaning his retirement at the age of 70 is due on December 29, 2019.
“The administrative decision to retire is made in bad faith is irrational, unreasonable and adversely affects the judge’s rights and further exposes him to great prejudice including criminal liability,” the lawyer says.
Kahonge contends that the Justice Githinji was not given an opportunity to be heard before JSC making such decision.
The lawyer will be asking the High Court to quash the decision to avoid him losing his retirement benefits.
He has sued JSC, The Chief Registrar of the Judiciary and the Attorney General, saying that in arriving at the impugned decision the respondents acted against the law and the constitution and misused their powers.
Kahonge further argues that the decision by the respondents is flawed and is meant to undermine the judicial process as Article 167(1) of the constitution the tenure of judges is on attaining the age of 70 years and leaves no room for presumption of date where an official and genuine certificate of birth exists.
The action of JSC is against the principles of natural justice, which provides that every claimants is entitled to have their claim considered in accordance to the law.
The lawyer will apply for an order compelling JSC, Chief Registrar of the Judiciary to give effect to the applicant’s certificate of birth No 648402 dated October 29, 1999 certifying that he was indeed born on December 30, 1949.
The court will be asked to issue an order to prohibit the respondents from implementing or acting on the impugned decision.