Justice Rawal fights for four more years in the courtroom

About 41 years ago, Kalpana Hasmukhrai Rawal appeared for the first time in a Kenyan court during an election petition filed by Henry Muli against Mau Mau fighter Paul Ngei.

The petition was over irregularities in the Kangundo parliamentary seat. Then, she was only a lawyer’s clerk. Ngei lost the case and the court nullified his election, but President Jomo Kenyatta, who had been detained with him under the colonial rule, saved his political career. Mzee Kenyatta granted him a pardon.

Justice Rawal had moved to Kenya in 1973 from India to join her husband, businessman Hasmukhrai Karsanji Rawal, with whom they have two sons.

Two years later, she set up her own private practice, becoming the first woman to run a law firm in Kenya. In 2000, she made news after being appointed the first female judge of Asian origin by retired President Daniel Moi.

For close to two decades the judge has worked to deliver justice to Kenyans and now she is engaged in a legal battle with her employer, the Judicial Service Commission (JSC), as she seeks to have her courtroom stay extended.

The Deputy Chief Justice joins 40 other senior judges in challenging the retirement age, following another suit filed last year by justices David Onyancha and Philip Tunoi. The judges who have attained the age of 70 have been stopped from presiding over cases until the Court of Appeal determines what age the officers should retire at.

During her career as a judge, she has not shied from being firm and headstrong in her legal stands. And Justice Rawal is not shy now to fight for what she believes is her right—to work for four more years.

She says she was hired under the old Constitution and the retirement brings to fore weighty issues of the Judiciary’s independence.

Justice Rawal who has served as the Deputy Chief Justice and vice president of the Supreme Court for two years, was born in India in the 1940s in a family of five daughters. At the time, India was a conservative society and the birth of daughters was no cause for celebration.

But her parents gave her and her siblings the best education. Of her siblings, she is the only one who followed in the career footsteps of her father and grandfather.

Her father, the late Justice U.J Bhatt, for 19 years served as a judge. Her grandfather Jaduram Bhatt had been the deputy law minister.

After practising law for three years in India she moved to Kenya in 1973 and was enrolled as an advocate of the High Court in July 1975 after teaching administration and regular police officers at Lower Kabete for a year.

When she started her private practise, K. H. Rawal Advocates offices were located at Imenti House.

“I could not help surging with pride when other women lawyers emulated me and went on to establish law firms, breaking the myth that it’s a men’s preserve… Never allow thoughts that you are a woman weigh you down,” she said five years ago.

It is at Imenti House where she worked from until 1999 when she was appointed Commissioner of Assize. Her time as judge has not been all smooth sailing.

In 2011 while still at the High Court, she delivered a judgment against the Ethics and Anti-Corruption Commission, barring it from confiscating assets of Stanley Amuti, the former National Water Conservation and Pipeline Corporation finance boss, to recover Sh140 million.

Justice Rawal awarded former MP Otieno Mak’Onyango Sh20 million for the suffering he underwent after the abortive coup of 1982.

In the case, she cleared former President Moi of any blame for the legislator’s arrest and torture by State agencies, saying no evidence had been presented showing any vendetta. “It would be unjust and unwarranted to make a Head of State personally responsible for failures or misdeeds of State officers without showing his direct participation. The evidence of personal involvement of Mr Moi is completely unavailable to the court,” the judge ruled.

Barely six months after being appointed an Appellate judge, she headed a commission of inquiry into the helicopter crash that killed Internal Security minister George Saitoti, his deputy Orwa Ojode, two bodyguards and two pilots on June 10, 2012.

As she was being considered to replace former Deputy Chief Justice Nancy Baraza who resigned in 2013, Justice Rawal faced strong opposition for having failed to serve as a judge outside Nairobi. However, the JSC recommended her to the President.

During her term as Deputy CJ, Justice Rawal has led the Supreme Court judges in dismissing an appeal challenging the election of Mombasa Governor Ali Hassan Joho after finding it was not properly filed.

Letter

She was also among the Supreme Court judges who upheld the election of Nathif Jama Adam as Garissa governor in 2013. The suit against her employer comes days after the JSC wrote her a retirement letter.

“I received a letter dated September 1 from JSC purporting to unconstitutionally retire me on January 15,  being the date that I will attain the age of 70 years,” she said in court documents.

Last week, the JSC advertised for the position of Deputy Chief Justice and vice president of the Supreme Court, arguing that the recruitment process is long and that the commission would like to have a replacement by the time Justice Rawal retires in January.

Supreme Court Judge Njoki Ndung’u, Appeal Court judges Agnes Murgor, Philemona Mwilu, Martha Koome and Hannah Okwengu and High Court judges Jessie Lesit and Wanjiru Karanja are said to be among those interested in the position.

The JSC wants the High Court to dismiss Justice Rawal’s suit, saying she is shifting goalposts, having agreed to retire at 70 when she interviewed for the position.

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