DEPUTY Chief Justice Kalpana Rawal will continue serving as a judge until an appeal challenging her retirement at 70 is determined.
The judge, who turned 70 this month, jumped the first hurdle yesterday when a bench of five judges of the Court of Appeal ruled the court has jurisdiction to hear the appeal.
Presiding judge GBM Kariuki said the case should be fast-tracked so Rawal can get justice.
He said the 2010 constitution gives a right to all litigants and dismissed a motion by the Judicial Service Commission, which wanted the appeal dismissed on the ground that cases of the constitution do not have a right of appeal.
“The Bill of Rights is the fabric that forms the society and must be enjoyed by all. A denial to appeal is a denial to justice,” Kariuki said.
Others judges who made the unanimous decision were Jamila Mohamed, William Ouko, Patrick Kiage and Prof Otieno Odek.
The DCJ reached the mandatory retirement age of 70 on January 15, as per the 2010 constitution.
But she and three other judges say they were employed under the old constitution, which set the retirement age for judges at 74.
The DCJ is appealing last December 11 High Court decision that she should retire at 70.
Judges Richard Mwongo, Weldon Korir, Christine Meoli, Hedwig Ong’udi and Charles Kamau ruled that Rawal bound herself to abide by the new constitution when she took a fresh oath of office as DCJ.
They said Rawal pledged to abide by the new constitution and any judge cannot go against an oath because it has substantial legal and constitutional implications.
The five said it was erroneous for Rawal to claim she can continue serving under the old constitution, yet she swore under the new constitution upon her new appointment.
They said the constitution pegs the retirement age of the Chief Justice at 70 and the Deputy Chief Justice cannot be allowed to retire at a different age because it would be illegal.
But in filing her notice of appeal last year, Rawal said the judges erred in dismissing the case without considering transitional clauses that spared judges appointed under the old constitution from retiring at 70. The case will be heard on February 15.