• PSC indicates only the year of birth, so by law, he is assumed to have been born on January 1
• He has been given a notice to retire in July
Image: JACK OWUOR
Court of Appeal judge Erastus Githinji has sued his employer, challenging the decision to make him retire by July.
The Judicial Service Commission had issued him a notice to retire from July 1 on attaining the retirement age of 70.
However, the judge says he has not attained the retirement age.
The judge says his date of birth is December 30, 1949, but the Judiciary has indicated he was born on January 1, 1949.
The mistake in his date of birth occurred when the Public Service Commission indicated on his job application form only the year of birth.
When an individual indicates only the year of birth, it is assumed by law that the person was born the first day of the year.
This error is not of his making and even exposes him to criminal cases because he might be accused of falsifying his date of birth, Githingi says.
He says his official date of retirement ought to be midnight of the 29th day of December.
In his application, the judge explains how the JSC communicated different dates for his retirement.
He says that on October 30 last year, Chief Registrar of the Judiciary Anne Amadi, on behalf of the commission, sent him a retirement notice stating that records showed that he would attain the 70 years on June 1.
He objected and informed the registrar that there are no official documents showing he was born on June 2, 1949.
On January 28, the judge received another notice indicating that he should retire by July 1.
He asked why the Judiciary never questioned his legal birth date, which is on all his documents including his passport.
Justice Githinji said the decision of his employer to retire him is laced with procedural impropriety.
He says contrary to rules of natural justice, he was not given a chance to be heard.
The judge added, “The decision went against the principle of natural justice which provides that every claimant is entitled to have their claim considered in accordance with the principle of natural and constitutional justice."
He wants an order to quash the notice by JSC and stop his retirement.