Deputy CJ Kalpana Rawal to remain in office until case is determined

 

Deputy Chief Justice Kalpana Rawal will stay in office until her appeal challenging judges' retirement age is determined.

The High Court had ruled that judges ought to retire at the age of 70 as provided for by the new Constitution.

But yesterday, the Court of Appeal adopted consent by Lady Justice Rawal’s lawyers and those of the Judicial Service Commission (JSC) that her position should not be advertised or successor recruited until the court settles the question of judges' retirement age.

The decision by the five-judge bench is a reprieve for Rawal, who is fighting to serve until she attains 74 years as was provided by the old Constitution. Rawal turned 70 on January 15. If the Court of Appeal had upheld the High Court decision she would have been forced to go home.

However, the ruling read by Justices GBM Kariuki, Otieno Odek, Patrick Kiage, William Ouko and Jamilla Mohammed was in her favour meaning she has only one more round to get assurance that she will still sit as a DCJ or not.

“By consent, the respondents, JSC and the Judiciary do undertake not to take any action prejudicial to the applicant pending the hearing and determination of the case,” the court ruled.

Court of Appeal dismissed JSC’s argument that it has no powers to entertain appeals emanating from the bill of rights.

The five-judge bench ruled that the 2010 Constitution gave the second highest court in the land, broad permission to hear general appeals, which was not the case under the old law.

Justices Kariuki, Odek, Kiage, Ouko and Mohammed ruled that everyone has a right of appeal from the High Court and holding otherwise would make the bill of rights an empty promise and meaningless.

It took the judges one hour and thirty minutes to rule that the DCJ’s case to battle her retirement age would continue.

It then means if the Court of Appeal upholds her argument, judges appointed under the old law are exempted to retire at 70 years, then the country will have the first woman Chief Justice but in acting capacity once Chief Justice Willy Mutunga retires in June until a new office holder is recruited.

“The right of appeal is conferred in the Constitution and the same Constitution confers jurisdiction to this court to hear general appeals.  If the argument is to the contrary, it would mean that the bill of rights remain just as empty promises,” the five judges ruled.

The Supreme Court, as currently constituted cannot hear Rawal’s appeal, as the CJ is JSC’s chair, which is a party in the case. Likewise, Smokin Wanjala is a member of JSC and thus will not also sit. Justices Rawal and Phillip Tunoi cannot sit by virtue that they are the ones challenging JSC’s decision to retire them.

It then remains three judges, Justices Njoki Ndung’u, Jackton Ojwang and Mohamed Ibrahim of which two (Njoki and Ojwang) had already made their reservation about judges being kicked out of judiciary at 70 years and thus it will be viewed that they will give a biased judgement.

On other hand there are claims that Justice Ibrahim protested over the retirement issue, together with Njoki and Ojwang by striking, a n issue they have denied.

Rawal’s case will be heard on February 15th by a bench to be constituted by the Court of Appeal president Kihara Kariuki.