The Supreme Court yesterday stopped the recruitment of the Deputy Chief Justice hours after Court of Appeal ruled that Justices Rawal and Tunoi must retire at 70 .
Justice Njoki Ndung'u of the apex court issued orders stopping the replacement of Kalpana Rawal until an appeal she filed before the court is heard and determined.
"Pending inter-parties hearing and determination of this application, a conservatory order is hereby issued directing that the decision of the High Court affirmed by the Court of Appeal dated May 27, 2016 to the effect that the retirement age of judges is 70 years be suspended," she said.
Ndung'u issued a conservatory order directing the Judicial Service Commission and Judiciary Registrar Anne Amadi from issuing any retirement notice to Rawal.
Rawal says she is supposed to retire at the age of 74 and not 70 since she was hired under the old constitution.
The orders were issued despite JSC, through lawyer Manssur Issa writing to the court contesting the issuance of any orders being issued before they are heard.
"Kindly note that we are available to attend court for hearing of any application for conservatory relief by the appellant as our client will be strongly objecting," Issa said.
In the judgement, appellate judges GBM Kariuki, Paul Kiage, Milton Makhandia, Jamila Mohamed, William Ouko, Kathurima M’Inoti and Otieno Odek unanimously declared that judges retire at 70.
Hopes of Rawal succeeding CJ Willy Mutunga were dashed when the Court of Appeal capped judges retirement age at 70.
A seven-judge bench declared that Rawal and her colleague Justice Philip Tunoi, 72, should retire at 70 years. Mutunga, 69, has said he will retire at the end of this month so that a recruitment process for another Chief Justice can start.
The two had moved to the court to contest a High Court decision in which five judges headed by the principal judge David Mwongo ruled that they retire at 70 and not 74 as they wanted.
They said it is wrong for Rawal to claim she is serving under the old constitution, while she promised to abide by the new constitution when she took oath of office as the Deputy Chief Justice on September 29, 2013. They said any judge cannot go against an oath, because it has substantial legal and constitutional implications.
“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,” the judges said.
But in essence, Rawal's case at the Supreme Court might collapse before it starts.
The bench comprised of the Chief Justice, herself, Tunoi, judges Jackton Ojwang’, Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung’u.
Since the CJ is retiring, he cannot sit while herself and Tunoi cannot hear their case.
Ibrahim, Wanjala and Ndung’u, who had earlier gone on strike can also not hear the case. This leaves only Ojwang, which is not acceptable by the rule of the court.
Reading the appellate judgement in the bench headed by Justice GBM Kariuki, he said the High Court did not err in declaring the two retire at 70. “The retirement age for judges is 70 years as per the current constitution. For the reason, the appeal fails and it is dismissed,” he said.
Other judges who concurred with the decision included Paul Kiage, Milton Makhandia, Jamila Mohamed, William Ouko, Kathurima M’Inoti and Prof Otieno Odek.
Rawal turned 70 on February 15, which is the mandatory retirement age for a judge under the current constitution. She prayed that the seven judges overturn the High Court’s decision, saying she should retire at 70 as stipulated in her contract.
(+) Tunoi and Rawal lose case on retirement age
Supreme Court judge Philip Tunoi said he is supposed to retire at age 74, since he was hired under the old constitution. In the case filed before the Court of Appeal, he wanted dismissal of a High Court judgment delivered last year. On December 11, a five-judge bench ruled that Deputy Chief Justice Kalpana Rawal, Tunoi and High Court judge David Onyancha should retire at 70. The judges were Richard Mwongo, Weldon Korir, Christine Meoli, Hedwig Ong’udi and Charles Kamau. But a few months after filing the appeal, Onyancha, who had reached 70, resigned. Tunoi is 72, while Rawal turned 70 on February 15. Lawyer Paul Muite and Issa Mansur – for the Judicial Service Commission, the employer of judges and magistrates – said it would be against the constitution if Tunoi serves until 74.