Court of Appeal judge Erastus Githinji has challenged the Judicial Service Commission's decision to retire him on July 1, saying his actual date of birth allows him to do so in December.
In papers filed in court on Monday, Justice Githinji, the longest serving judge of the appellate court, says the JSC served him with a letter on January 28, notifying him that his retirement was effective July 1.
He explains the circumstances around his date of birth, saying he only indicated it in the job application form to the Public Service Commission on April 11, 1975.
When his happens, Justice Githinji says, one is deemed to have been born on January 1.
He notes, however, that the actual date - December 30, 1949 - was indicated in all official documents including the passport, tax documents and income declaration forms, which the JSC has never questioned.
In the petition, the judge stated that the commission handed him the first letter on October 30, 2018 and another one in January, notifying him of the decision on his retirement.
Through lawyer Macharia Kahonge, he says the JSC did not grant him a hearing before issuing the letters yet the decision will adversely affect his retirement benefits.
He says the move is unconstitutional and limits his fundamental rights of fair administrative action and fair hearing.
Justice Githinji also points out that he is to retire on December 29, so the notice by his employer is "unreasonable and adversely affects the applicant’s rights and exposes him to great prejudice including criminal liability”.
He wants the court to allow him to institute a case, the goal being to have the JSC’s decision quashed.
The judge further notes that an executive policy document cannot affect a decision of the JSC and the Chief Registrar of the Judiciary, an independent body, whose functions and powers are stipulated in the Constitution.
The retirement age of judges is stated in Article 167(1) of the Constitution as 70 years but one can opt to retire at 65 years.
“I verily believe that the policy directive applied in my case was an unconstitutional limitation of fundamental rights of fair administrative action and fair hearing and was not reasonable and justified in an open and democratic society based on the rule of law, particularly the principle of legality,” Justice Githinji says in an affidavit.
He wants the case heard on priority basis so that his grievance is corrected without delay.