Judiciary to issue fresh notice over Justice Rawal's retirement

Deputy Chief Justice Kalpana Rawal at the Supreme Court on November 19, 2015 during the launch of the Judiciary Strategic Plan. Justice Rawal will retire on January next year. PHOTO| EVANS HABIL | NATION MEDIA GROUP

What you need to know:

  • They said that since the constitution pegs the retirement of the Chief Justice at 70 years, the holder of the position of the Deputy Chief Justice cannot be allowed to retire under a different age requirement because it will be perpetuating an illegality.

Deputy Chief Justice Kalpana Rawal will now retire at the constitutional age of 70 after the High Court dismissed her application challenging her retirement early next year.

A five-judge bench of Justices Richard Mwongo, Weldon Korir, Christine Meoli, Hedwig Ong'udi and Charles Kariuki ruled that Justice Rawal was bound to abide by the 2010 constitution when she took an oath of office.

"By taking a fresh oath of office under the new constitutional dispensation, she was making a fresh start by angling herself and pledging loyalty to the new order. A judge cannot go against an oath because it has substantial legal and constitutional implications", the judges said.

In the 166 page judgment, the judges said it was erroneous for Justice Rawal to claim she can continue to serve under the old constitution, which put the retirement at 74 years, yet she swore under the new constitution upon her appointment as the Deputy Chief Justice.

They said that since the constitution pegs the retirement of the Chief Justice at 70 years, the holder of the position of the Deputy Chief Justice cannot be allowed to retire under a different age requirement because it will be perpetuating an illegality.

Nonetheless, the judges said the Judicial Service Commission (JSC) erred in going ahead to advertise her position saying due process was not followed.

“We therefore quash the decision to advertise the position of the Deputy Chief Justice (DCJ) and direct the Judiciary to issue fresh notices of retirement because the one that the JSC did was done without authority," adding “The JSC and the Judiciary are two distinct organs and therefore it was wrong for the JSC to make a decision requiring that judges who have attained the age of 70 years should not preside over cases.”

The JSC had advertised the recruitment of her successor in September. She will be retired on January 16, 2016.