Deputy Chief Justice Kalpana Rawal has appealed against a High Court decision dismissing her bid to block her retirement at 70 years.
Lady Justice Rawal argued that the High Court made a mistake in ruling that she retires at 70 instead of 74, and want temporary orders restraining the Judicial Service Commission from advertising for the job until her appeal is determined.
Her lawyer, Kioko Kilukumi, faulted the five judges of the High Court for dismissing the case without considering transitional clauses that spared judges appointed under the old constitution from retiring at 70.
“They failed to appreciate that Section 31 of the Sixth Schedule expressly saved the retirement age of all judges appointed prior to the effective date, and that those judges should serve the full tenure as per their appointment under the repealed constitution,” said Kilukumi.
Judges Richard Mwongo, Weldon Korir, Christine Meoli, Hedwig Ong'udi and Charles Kariuki on December 11 ruled that Justice Rawal had bound herself to abide by the 2010 Constitution when she took a fresh oath of office and dismissed her case challenging her retirement age.
According to the judges, Justice Rawal made a fresh start by pledging loyalty to the new constitution and that any judge cannot go against an oath because it has substantial legal and constitutional implications.
They said that it was erroneous for the DCJ to claim she can continue serving under the old constitution that put the retirement at 74 years, yet she swore under the new constitution upon her new appointment as the Deputy Chief Justice.
But Mr Kilukumi accused the High Court judges and the JSC of discriminating against the DCJ, claiming other judges in similar circumstances had been allowed to retain their retirement age of 74.
The application was certified urgent by the Court of Appeal and set for hearing on December 28.