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LSK threatens to sue if retired judge heads tax tribunal

githinji

Retired judge Erastus Githinji. FILE PHOTO | NMG

The Law Society of Kenya (LSK) has threatened to sue the Treasury Secretary should retired judge Erastus Githinji be sworn in as the chairman of the Tax Appeals Tribunal.

In a letter to Treasury Secretary Ukur Yatani, LSK president Nelson Havi said the 70-year-old retired judge did not qualify to chair the tribunal due to his age.

According to LSK, Mr Githinji is not qualified to chair the tribunal because Section 4(3) of the Tax Appeals Tribunal Act requires that the chairperson be a person qualified to be appointed as a judge of the High Court.

“Qualifications for appointment of a judge are set out in Article 166(5) of the Constitution. A judge of the High Court retires on attaining the age of 70,” said Mr Havi.

It follows that any advocate above the age of 70 does not qualify for appointment as a judge of High Court and by extension as chairperson of the tax tribunal, argues Mr Havi in the protest letter.

Born on December 30, 1949, Mr Githinji attained the age of 70 last year and retired from the Judiciary.

Mr Havi said the retired judge became ineligible for appointment as a judge of superior court effective January 1, 2020.

The LSK wants revocation of a gazette notice dated April 15 by Mr Yatani informing public of Mr Githinji’s appointment to head the tribunal for five years.

Mr Havi also asked Mr Githinji, who has also been copied the letter, to reject the appointment with other sources indicating that the swearing-in is scheduled to happen before the end of this week. He called on Mr Yatani to start a competitive recruitment process or face legal action.

“The specialised nature of the Tax Appeals Tribunal would require that an advocate with academic and professional qualifications and experience in tax law and procedure be appointed.”