The court said JSC should not take any action over the intended retirement which he has challenged for having been not properly computed and calculated, pending the hearing of a petition filed by the judge/FILE
, NAIROBI, Kenya, Apr 11 – The Employment and Labour Relations Court, has stopped the Judicial Service Commission (JSC) from effecting notice to retire Justice Erastus Githinji of the Court of Appeal.
The court said JSC should not take any action over the intended retirement which he has challenged for having been not properly computed and calculated, pending the hearing of a petition filed by the judge.
Justice Bryan Ongayo said that from the submissions of the judge’s lawyer Patrick Kahonge, the court has established that there exist a good case which has to be heard by all parties and a determination made.
The lawyer told the court that Judiciary has all documents of the judge which include his passport, income tax PIN number, birth certificate and declaration form which shows that his retirement is December 30, 2019 and not July 1, 2019.
“It’s unfair to ask him to retire when he has not opted. He must be given chance to serve,” he argued.
The JSC has not replied to the judge’s letters asking them to carry out proper computation, saying that there is mischief on the part of the employer.
The JSC in letter dated October 30, 2018 communicated to the judge over his retirement, which he says not properly calculated according to his certificate of birth.
Kahonge told the court that the judge’s legal date of birth is December 30, 1949 meaning his retirement at age of 70 is due on December 29, 2019.
“The administrative decision to retire is made in bad faith, is irrational, unreasonable and adversely affects the judge’s rights and further exposes him to great prejudice including criminal liability,” the lawyer said.
Kahonge contented that Justice Githinji has not been given an opportunity to be heard before JSC made such a decision.
He has sued the JSC, the Chief Registrar of the Judiciary and the Attorney General, saying that in arriving at the impugned decision the respondents had acted against the law and the Constitution and misused their powers.
The court granted the judge leave to file a substantive application seeking to quash the decision and prohibit JSC from prematurely retiring him.
The case will be mentioned on April 30, 2019 for further directions.