JSC accuses Kalpana Rawal of lying, insincerity in her bid to block her retirement

The Judicial Service Commission has faulted Deputy Chief Justice Kalpana Rawal in her bid to stop the recruitment of her successor.

The JSC turned the heat on Justice Rawal, accusing her of lying and being insincere in the bid to block her retirement.

Judiciary Registrar Anne Amadi swore that Justice Rawal had agreed to retire at the age of 70 when she applied for the post of DCJ.

She wondered why Justice Rawal changed her mind when the commission served her with a retirement notice and advertised the position.

“The question of her retirement age was put to her during the interview to which she answered that she would retire at 70.

(READ: Rawal in court bid to stop her retirement)

“She should not be allowed to approbate and reprobate when it comes to the issue of her retirement age,” said Ms Amadi.

According to Ms Amadi, Justice Rawal was appointed in accordance with the 2010 Constitution, which created the post of DCJ.

Therefore, Ms Amadi pointed out, Rawal should not peg her claims to the former Constitution, which allowed judges to remain in office until 74.

LABOUR COURT

The commission, through lawyers Ahmednasir Abdullahi, Prof Tom Ojienda and Charles Kanjama, also objected to the DCJ’s application being heard at the constitutional court.

It said the matter was a dispute between an employer and an employee, which is a preserve of the labour court.

“This is a dispute between an employer and an employee, which should be heard at the Employment and Labour Relations Court.

“Her application is without merit, misconceived and an abuse of the court process meant to frustrate the JSC,” said Mr Abdullahi.

Mr Abdullahi further opposed Justice Rawal’s application to have the dispute heard by at least three judges.

He argued that the case did not raise weighty constitutional questions to warrant a bench.

But the DCJ, through lawyers George Oraro and Kioko Kilukumi, insisted the matter be referred to Chief Justice Willy Mutunga to constitute a bench.

The lawyers said the matter involved the interpretation of when judges appointed under the former Constitution should retire.

“This dispute goes beyond Justice Rawal, it is an issue which goes beyond (an) employment dispute but to the core of constitutional interpretation which warrants a bench of uneven judges,” said Mr Oraro.

Justice Rawal is seeking to stop the JSC from recruiting her successor, arguing that she was appointed under the old Constitution which allows her to sit in the judiciary until she attains 74 years.

CONSTITUTIONAL CRISIS

According to her, any recruitment and appointment of her replacement will result in a constitutional crisis as there will be two persons occupying the same office.

Ms Amadi, however, swore that it is Justice Rawal’s refusal to retire that would cause a constitutional crisis in the Judiciary by frustrating the commission’s effort to avoid a vacuum when she retires.

“Justice Rawal is currently on terminal leave while another Supreme Court judge, Philip Tunoi, is not sitting.

“The court now has only five judges and if one of them gets sick, the Supreme Court will not be properly constituted which will cause a greater constitutional crisis,” swore Ms Amadi.

The registrar further defended the JSC’s decision to stop all judges who have attained 70 years from presiding over cases.

(READ: Lawyers to shun 70-year old judges)

She argued that it was a precaution to avoid possible challenges to their judgments in case it is found they illegally conducted the proceedings past their retirement age.

She added that it would be harmful to the public if the court stops the recruitment of a new DCJ as it would interfere with the smooth transition of her successor.

Justice Isaac Lenaola will rule on Thursday whether to transfer the dispute to the CJ to appoint a bench of three judges.