Lady Justice Kalpana Rawal. PHOTO | FILE
By SANDRA CHAO-BLASTO, schao@ke.nationmedia.com
The High Court has declined to issue orders halting
the ongoing recruitment for the position of deputy chief justice and
vice-president of the Supreme Court.
Deputy Chief Justice Kalpana Rawal through her lawyer George
Oraro wanted the High Court to issue conservatory orders stopping the
recruitment by the Judicial Service Commission (JSC).
The commission served the deputy CJ with a
retirement notice on September 1, indicating that she would leave office
on January 15 next year after turning 70.
The Commission proceeded to advertise the position
on September 6 in various newspapers, calling for applications before
September 28 in order to ensure a smooth transition by the time Justice
Rawal leaves office.
Justice Richard Mwongo said he could not grant the
orders as the Chief Justice had appointed a five-judge Bench to hear the
matter and directed that the application be made before them.
Justice Weldon Korir, Lady Justice Hedwig Ongudi,
Lady Justice Christine Meoli and Justice Charles Kariuki along with Mr
Justice Mwongo will now hear the petition.
Due to the urgency of the case, senior counsel
Oraro wanted the matter heard before September 28, which was the
deadline that the JSC had given in the vacancy advertisement.
The deputy Chief Justice maintains she was hired
under the old Constitution, which allowed judges to stay in office until
they were 74.
JSC however argues that the judges took a fresh
oath after the promulgation of the 2010 Constitution, which provides
that they should retire at 70.
The judiciary employer says the circular that
allowed judges under the old laws to serve until 74 was erroneously
issued and was a contradiction to the Constitution, which made it null
and void.
JSC has claimed in court documents that Justice Rawal said she would retire at 70 during her interview for the post in 2013.
In a supplementary affidavit, Justice Rawal said
she could not recall having been questioned about her retirement age
during her interview for the position.
“JSC kept a verbatim record of the interviews and
it is upon it to produce such records to confirm the context in which my
retirement age was discussed,” she said, adding that the security of
tenure of judges was a constitutional right that could not be
disregarded despite any response she had made.
Justice Rawal said she did not institute the
proceedings for her own gain but to ensure that the Constitution is
defended with regards to the independence of the judiciary and the
security of tenure for judges.
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