The battle to succeed Deputy Chief Justice Kalpana Rawal will start on Friday after she failed to stop the Judiciary from retiring her.
Lady Justice Rawal turns 70 on January 15 and had hoped that her application to stop her retirement would be heard but five judges of the Court of Appeal declined after the Judicial Service Commission raised objections on the hearing of the appeal.
Judges GBM Kariuki, Patrick Kiage, William Ouko, James Odek and Jamila Mohammed instead told the DCJ to wait until January 29 when they will rule on the application by JSC, by which time her tenure will have expired.
“There is nothing we can do to hear her application seeking to stop her retirement until we determine the preliminary objection raised by the JSC. We can only bank on the undertaking by the commission that they will not recruit her successor until then,” said the judges.
Although the JSC through lawyer Ahmednassir Abdullahi told the judges they would not recruit her successor before the ruling, they said they could not stop Chief Justice Willy Mutunga from declaring the DCJ’s seat vacant on Friday.
Mr Abdullahi had raised an objection to the appeal being heard, claiming the DCJ had no right of appeal against the High Court decision that all judges retire at 70.
“The Court of Appeal has no original jurisdiction to hear and interpret the constitutional questions she is raising without any statute giving them the powers. Her appeal is bad in law, defective without any authority and should be struck out,” he said.
Her lawyer George Oraro however maintained that every person has a right to approach the Court of Appeal when dissatisfied with the High Court.