Nairobi — Court of Appeal judge Erastus Githinji has filed an application seeking to quash the decision of Judicial Service Commission to order his retirement on 1 July 2019.
The JSC in letter dated 30 October 2018 has communicated to the judge over his retirement, which he says was not properly calculated according to his certificate of birth.
The judge through his lawyer Patrick Kahonge, says his legal date of birth is 30 December 1949 meaning his retirement at age of 70 is due on 29 December 2019.
"The administrative decision to retire is made in bad faith, irrational unreasonable and adversely affects the judge's rights further exposes him to great prejudice including criminal liability," the lawyer says.
Kahonge contends that the Justice Githinji was not given an opportunity to be heard before JSC making such decision.
The lawyer will be asking the High Court to quash the decision to avoid him losing his retirement benefits.
He has sued JSC, Chief Registrar of the Judiciary and the Attorney General, saying that in arriving at the impugned decision the respondents acted against the law and the Constitution and misused their powers.
Kahonge further argues that the decision by the respondents is flawed and is meant to undermine the judicial process as article 167(1) of the Constitution the tenure of judges is on attaining the age of 70 years it leaves no room for presumption of date where an official and genuine certificate of birth exists.
The action of JSC is against the principles of natural justice which provides that every claimant is entitled to have their claim considered in accordance to the law.
The lawyer will apply for an order compelling JSC, Chief Registrar of the Judiciary to give effect to the applicant's certificate of birth No 648402 dated 29 October 1999 certifying that he was indeed born on 30 December 1949.