Mutunga forms five-judge bench to hear Rawals case

Chief Justice Willy Mutunga has appointed a five-judge bench, headed by Justice Richard Mwongo, to hear Deputy Chief Justice Kalpana Rawal’s application challenging her retirement.

Justice Isaac Lenaola, who referred the matter to Chief Justice Willy Mutunga, argued that Rawal had convincingly demonstrated that her case goes beyond an employer- employee dispute and has raised questions of law.

Rawal wants the Judicial Service Commission (JSC) stopped from continuing the process of securing her replacement, arguing that as she was employed prior to the promulgation of the constitution.

Rawal argued that she should retire at 74 and not 70 years of age as demanded by the commission.

Six days ago, the High Court referred the retirement case involving Deputy Chief Justice Kalpana Rawal to the Chief Justice for deliberation.

In a ruling made on Thursday, High Court judge Justice Isaac Lenaola urged Chief Justice Willy Mutunga to constitute a three-judge bench to hear the matter, saying it raises unique Constitutional concerns.

Rawal moved to court on Monday seeking to appeal a decision by the Judicial Service Commission (JSC) to advertise her position in the local dailies.

The advert, which ran on September 1, 2015, called on those interested in the Deputy Chief Justice position, currently held by Kalpana Rawal, to send their applications for consideration.

The deputy chief justice called for the dismissal of the advert and the decision by JSC to retire her at 70 years of age, terming it unconstitutional.

The latest development comes even as the Law Society of Kenya (LSK) called on its members to boycott courts presided over by judges above 70 years of age.

LSK said it would petition the JSC to commence the removal of Judges who are above 70 on grounds of gross misconduct and misbehaviour, breach of Judges Code of Conduct and violation of the Constitution.

The JSC had said its decision to advertise Rawal’s position was to enable the judiciary to fill the deputy chief justice position immediately she exits office.

The Judiciary has started the process of replacing Deputy Chief Justice Kalpana Rawal, who is set to retire on January 15, 2016 upon attaining the retirement age of 70.

In a statement, the Judicial Service Commission (JSC) said the issue of retirement of Judges has been emotive following a legal opinion rendered by the attorney general on the matter last year, leading to a resolution that the retirement age of judges is 70 in accordance with Article 167 (1) of the Constitution of Kenya, 2010.

“It is in this context that JSC consequently served notice to the Hon Deputy Chief Justice Kaplana Rawal who is due to retire from office on 15^th January 2016,” read the statement.

“Due to the importance of the office of the Deputy Chief Justice (DCJ) and considering the long recruitment process involved, the commission has decided to advertise the position and commence the recruitment process to have a new DCJ in office by the time the current occupant retires.”