LSK fights retired judge's appointment Tax Appeals Tribunal

The Law Society of Kenya has opposed government's appointment of retired judge Erastus Githinji as chairman of the Tax Appeals Tribunal.

In a letter to Treasury Cabinet Secretary Ukur Yatani, the LSK president Nelson Havi says the 70-year-old retired judge does not qualify to chair the tribunal on account of his age.

According to LSK, Mr Githinji is not qualified to chair the tribunal because Section 4(3)of the Tax Appeals Tribunal Act requires that the chairperson be a person qualified to be appointed as a judge of the High Court.

"Qualifications for appointment of a judge are set out in Article 166(5) of the constitution. A judge of the High Court retires on attaining the age of 70 years," says Mr Havi.

It follows that any advocate above the age of 70 years does not qualify for appointment as a judge of High Court and by extension as chairperson of the yax tribunal, argues Mr Havi in the protest letter.

Born on December 30, 1949 Mr Githinji attained the age of 70 last year retired from the Judiciary.

Mr Havi said the retired judge became ineligible for appointment as judge of superior court effective January 1, 2020.

LSK wants revocation of a gazette notice dated April 15 by CS Yatani informing public of Mr Githinji's appointment to the chairmanship of the tribunal for a period of five years.

 Mr Havi also asked Mr Githinji, who is also copied the letter, to reject the appointment.

The lawyer has called on CS Yatani to commence a competitive recruitment process adding that failure to do so will attract a legal action.

"The specialised nature of the Tax Appeals Tribunal would require that an advocate with academic and professional qualifications and experience in tax law and procedure be appointed. There is no shortage of such advocates in the membership of LSK," Mr Havi says. 

While describing Mr Githinji's appointment as 'unconstitutional, unlawful, null and void from the begining', the LSK leader says a legal action will be initiated within seven days as a remedy should the CS fail to revoke the appointment and commence a competitive recruitment process.

"Githinji is a respected retired judge. He does, however, not qualify for appointment as chairperson of TAT on account of age," Mr Havi insists while contesting CS' decision.

Mr Githinji became a judge in May 1987 and a judge of the Court of Appeal in June 2003.

It is not the first time the retired judge is in public limelight on matters related to work in the judicial sector.

Last year, the Judicial Service Commission (JSC) had attempted to retire him on June 1, 2019 but the judge refused, saying he had not attained the retirement age.

The dispute was on whether he was born on June 1 or December 30, 1949.

In the confusion, the Chief Registrar of the Judiciary had conveyed to Mr Githinji that JSC records indicated his retirement age of 70 years was on June 1, 2019.  The registrar had asked the judge to submit his documents for computation of his pension benefits.

Instead Mr Githinji sued his employer at the Employment and Labour Relations Court and Justice Byrum Ongaya ruled in his favour by holding that the retirement date imposed by JSC to be June 1, 2019 was illegitimate.

The court found that Githinji’s date of birth is December 30, 1949, and attainment of 70 years would be on December 30, 2019 and not June 1, 2019.

In fighting the retirement imposed by JSC, Mr Githinji said there were no records indicating that he was born on June 1, 1949.

The court heard that in 1999 the judge applied for a passport and was required to indicate his date of birth. He applied for a certificate of birth on October 29 and was issued indicating his date of birth was December 30, 1949.