Economy

Court fails to grant Rawal order halting search for successor

CJ

Lady Justice Kalpana Rawal. PHOTO | FILE

The High Court has declined to issue orders halting the ongoing recruitment for the position of deputy chief justice and vice-president of the Supreme Court.

Deputy Chief Justice Kalpana Rawal through her lawyer George Oraro wanted the High Court to issue conservatory orders stopping the recruitment by the Judicial Service Commission (JSC). 

The commission served the deputy CJ with a retirement notice on September 1, indicating that she would leave office on January 15 next year after turning 70.

The Commission proceeded to advertise the position on September 6 in various newspapers, calling for applications before September 28 in order to ensure a smooth transition by the time Justice Rawal leaves office.

Justice Richard Mwongo said he could not grant the orders as the Chief Justice had appointed a five-judge Bench to hear the matter and directed that the application be made before them.

Justice Weldon Korir, Lady Justice Hedwig Ongudi, Lady Justice Christine Meoli and Justice Charles Kariuki along with Mr Justice Mwongo will now hear the petition.

Due to the urgency of the case, senior counsel Oraro wanted the matter heard before September 28, which was the deadline that the JSC had given in the vacancy advertisement.

The deputy Chief Justice maintains she was hired under the old Constitution, which allowed judges to stay in office until they were 74.

JSC however argues that the judges took a fresh oath after the promulgation of the 2010 Constitution, which provides that they should retire at 70.

The judiciary employer says the circular that allowed judges under the old laws to serve until 74 was erroneously issued and was a contradiction to the Constitution, which made it null and void.

JSC has claimed in court documents that Justice Rawal said she would retire at 70 during her interview for the post in 2013.

READ: Rawal agreed to retire at 70 before taking post

In a supplementary affidavit, Justice Rawal said she could not recall having been questioned about her retirement age during her interview for the position.

“JSC kept a verbatim record of the interviews and it is upon it to produce such records to confirm the context in which my retirement age was discussed,” she said, adding that the security of tenure of judges was a constitutional right that could not be disregarded despite any response she had made.

Justice Rawal said she did not institute the proceedings for her own gain but to ensure that the Constitution is defended with regards to the independence of the judiciary and the security of tenure for judges.

“A determination on this constitutional question on the retirement age of judges transitioning from the old constitutional order will bring certainty and settle the law which affects at least forty judges,” said the Deputy Chief Justice.

The case will now be heard on September 30.

The deputy CJ joins 40 other senior judges in challenging the retirement age, following another suit filed last year by Justices David Onyancha and Philip Tunoi. The suit is currently before the Court of Appeal.