Judge sues to bar JSC from retiring her ‘prematurely'

A judge has gone to court over the controversial question of when judges who were appointed under the old Constitution should retire.

The case by Lady Justice Dr Joyce Khaminwa was certified as urgent by Justice David Majanja on May 23, who said the judge has raised serious constitutional issues on her individual rights which needed to be resolved at a full hearing.

Justice Majanja ordered the judge to serve her court papers upon the Judicial Service Commission and the Chief Registrar of the Judiciary Ms Anne Amadi for hearing on May 26.

Justice Khaminwa is challenging a notice served upon her by the JSC to quit office on June 3 2014 upon attaining the age of 70.

A letter to the judge from the JSC dated April 28, 2014, says: “...deliberations about judges retirement age and it was resolved that all Judges shall retire at the age of 70.”

In the letter, the judge was informed by Ms Amadi that she had attained the mandatory retirement age.

But the judge has opposed the move by JSC saying she was appointed under the repealed constitution which required them to retire upon attaining the age of 74.

In the case filed under a certificate of urgency by her husband, Dr John Khaminwa, the applicant is asking the court to restrain the JSC and the Chief Registrar jointly and severally, and bar them from acting on or implementing the decision to retire her.

Dr Khaminwa says in the certificate that the judge is anxious that she may be retired prematurely for the simple reason that she was appointed before the current constitution came into operation August 27 2010.

“The constitution caps the retirement age of judges at 70 which does not apply to those judges who have been office before the new law came into operation,” Dr Khaminwa told Justice Majanja.

The lawyer states that the Sixth Schedule of the Constitution pronounces, under Section 31 (1), that : “ Unless this Schedule provides otherwise, an person who immediately before the effective date, held or was acting in that office established by the former constitution shall, on the effective date, continue to hold or act in that office under this Constitution for the unexpired period of the term of the person.”

The judge says the respondents (JSC and the Chief Registrar) acted beyond their powers and duties, and “do not possess powers to employ and or retire judges unilaterally.”

Justice Khaminwa who has a pending competence matter before the Judges and Magistrates Vetting Board, says the decision to retire judges is malicious and intended to undermine the judicial process in the country.

Judges appointed under the old constitution insist they should retire at 74 years as provided under the old law, and not the 70 years set by the new Constitution.

On May 4 Chief Justice Willy Mutunga confirmed to the Sunday Nation that the JSC was addressing the matter and would seek legal opinion before arriving at a decision.

Dr Mutunga said the JSC had drawn up a list showing when all the current judges are due for retirement., and that those serving and had exceeded 70 years are doing so with the authority of the Commission.