Deputy Chief Justice Kalpana Rawal and suspended Supreme Court Judge Philip Tunoi has lost a bid to remain in office after the Court of Appeal upheld the High Court decision to retain the retirement age of Judges at 70 years.
Lawyer Waweru Gatonye, representing Rawal, has, however, filed a notice of appeal against the ruling.
Rawal has already attained the retirement age and she was expected to be the acting Chief Justice when Dr. Willy Mutunga retires next month.
Tunoi had also challenged his retirement saying he should retire at 74 years as he was appointed during the old constitution dispensation.
Late January 2016, the Court of Appeal dismissed an application by the Judicial Service Commission (JSC) seeking to block Deputy Chief Justice Kalpana Rawal from appealing against a High Court ruling requiring her to retire at the age of 70 years.
JSC had moved to court to block Rawal from appealing against a High Court decision calling for her immediate retirement, at the age of 70, in accordance with the new Constitution.
In the ruling, the five-judge bench allowed Rawal to continue serving in her position as the Deputy Chief Justice until her appeal was heard and determined.
Rawal, alongside several other judges, have protested calls for their retirement saying they should be allowed to serve according to the terms of the old Constitution.
Tunoi had also protested JSC’s move to have him retire at the age of 70 saying the Constitution allows him to serve until he is 74 years.
In an interview with Citizen TV, Tunoi attributed the bribery allegations facing him regarding Kabete MP Ferdinand Waititu’s election petition against Governor Evans Kidero to succession politics and his push against forced retirement.
“There is also the question of whether I should retire at the age of 70 or 72. I have fought for my right to retire at the age of 74 based on what the Section 31 of the Sixth Schedule.”
The section quoted by Justice Tunoi states: “Unless this schedule provides otherwise, a person who immediately before the effective date, held or was acting in an office established by the former Constitution shall on the effective date continue to hold or act in that office under this Constitution for the unexpired period, if any, of the term of the person.”
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