Rawal v Judicial Service Commission & another; Okoiti (Interested Party); International Commission of Jurists & another (Amicus Curiae) (Civil Appeal 1 of 2016) [2016] KECA 534 (KLR)

The court distinguished 'term' (a fixed period ending by effluxion of time) from 'tenure' (an office ending upon attaining a retirement age). Judges do not serve a term. The 1964 transition to the Republican Constitution contained an express proviso preserving prescribed retirement ages; its absence from section 31(1) shows the makers of the 2010 Constitution deliberately chose that all judges retire at 70 years. Section 23, tailor-made for judges, is the applicable transitional provision.

Section 7 cannot transit the former Constitution itself into the new order, as that would result in a new constitutional order perpetuating the old. Section 9 of the Judicature Act was anchored on section 62 of the former Constitution and had no independent existence; it could not survive the repeal of the provision it implemented.

Comparative authorities (Mial v Ellington, Butler v Pennsylvania, Camarines Norte) establish that a public office is not property and an expected retirement age is not a vested right. Pension for services actually rendered is an absolute right under section 5(1) of the Pensions Act and section 32 of the Sixth Schedule protects the pension formula, but no contingent or accrued rights exist for future, unserved periods.

The court held that in interpreting the Constitution, primacy must be given to Kenya's unique historical context. Where other jurisdictions intended to exempt serving judges from reduced retirement ages, they enacted express provisions; the absence of such a proviso in the Kenyan Sixth Schedule indicates a conscious decision that all judges retire at 70. The judgments cannot constitute universal precedent binding other countries.

Authoritative interpretation of the Constitution lies with the courts, not the JSC. The JSC's decisions were mere interpretations that were neither final nor binding. Advertisements published in 2012 for the office of Deputy Chief Justice clearly stated the retirement age as 70 years. Further, the doctrine requires detriment from reliance, which the appellant did not demonstrate.

On re-evaluating the evidence, the memorandum by Supreme Court judges relied on by the High Court as constituting a hearing was written after the impugned decision. Under section 6(4) of the Fair Administrative Action Act a presumption of want of good reason arises. However, since the final and authoritative determination of the retirement age lies with the courts, the procedural failure could not affect the outcome.