Deputy CJ's tenure ends on Friday amid dispute

Deputy Chief Justice Kalpana Rawal at a past function in 2014. Justice Rawal turns 70 on January 15, 2016. PHOTO | EVANS HABIL | NATION MEDIA GROUP

What you need to know:

  • Justice Rawal turns 70 on January 15.

  • The JSC and activist Okiya Omtatah had insisted that judges appointed under the old constitution and are about to attain 70 should not sit on the Bench.

Deputy Chief Justice Kalpana Rawal’s tenure in the Judiciary comes to an end on Friday, even as she battles to have the Court of Appeal extend her stay.

Justice Rawal turns 70 on January 15.

She has appealed against a High Court ruling which said that all judges appointed under the old constitution had taken a fresh oath of office and must retire at the age of 70.

Her appeal, and those of Justice Philip Tunoi and Justice Philip Onyancha, who are also contesting their retirement age, have, however, been rocked by controversy on who should sit on the Bench. This led Chief Justice Willy Mutunga to call for a crisis meeting with the parties.

Dr Mutunga’s “kamukunji” with the lawyers representing all the parties was a first in the Judiciary.

The lawyers were given the opportunity to agree on which judges should hear their case, unlike the normal practice where the CJ just constitutes a Bench without consulting the parties.

“We have been experiencing a difficulty in constituting a Bench due to the position taken by each side. That is why I summoned all the lawyers to help us agree on which judges should be appointed to the Bench to have this matter finalised,” said Dr Mutunga.

It was after the CJ intervened that all the lawyers agreed to have a mixture of judges — those appointed under the old constitution and those under the new Constitution — on the Bench to start hearing the dispute on Tuesday.

The Judicial Service Commission and activist Okiya Omtatah had insisted that judges appointed under the old constitution and are about to attain 70 should not sit on the Bench because they are directly affected by the age dispute.

According to lawyers Paul Muite and Ahmednasir Abdullahi, representing the commission, a wrong perception would be created when those judges are allowed to hear the case.

“What will the public think of a judge who has only eight months to go sitting in a case where he is to determine whether to retire at 70 or 74?,” said Mr Abdullahi.