Court of Appeal affirms the High Court’s Decision on the age of retirement for all Judges as 70 years

Justice Kalpana H Rawal v JSC and 2 others

Civil Appeal No 1 of 2016

Court of Appeal at Nairobi

G B M Kariuki, M S A Makhandia, W Ouko, P O Kiage, K M’inoti, J.

J Mohammed & J O Odek, JJ.A.

May 27, 2016

Reported by Long’et Terer

Constitutional Law- office of judges-security of tenure of office of judges- original tenure of judges under the Repealed Constitution vis a vis the Constitution of Kenya, 2010- Whether the Constitution of Kenya, 2010 elected to apply the retirement age of 70 years to all judges or whether it exempted serving judges and preserved their retirement age at 74 years as provided for under the repealed Constitution- Whether retiring a Judge at the age of 70 years, when they have a legitimate expectation to serve up to 74 years of age, constituted a violation of their right to property under Article 40(1) of the Constitution-Constitution of Kenya, 2010, article 167; Constitution of Kenya, 1963(Repealed), section 62(1)

Constitutional Law-Judicial Service Commission- role of the JSC in determining the retirement age of judges- whether the Judicial Service Commission could determine the retirement age of judges-Constitution of Kenya, 2010, articles 167; Sixth Schedule of the Constitution of Kenya, 2010, sections 23, 24, 31;

Constitutional Law-fundamental rights and freedoms-rights to equality and freedom from discrimination, to human dignity, right to property- protection of rights –whether retiring a Judge at the age of 70 years, when they have a legitimate expectation to serve up to 74 years of age, constituted a violation of their right to property under Article 40(1) of the Constitution-Constitution of Kenya, 2010, articles 27(4), 40 and 41

Constitutional Law- pension entitlement -forfeiture of accrued pension- whether the Appellant’s retirement at the age of seventy years, would forfeit their pension bearing accrued entitlements-Constitution of Kenya, 2010, Sixth Schedule of the Constitution of Kenya, section 32; Pensions Act (cap 189)sections 5,6

Brief Facts:

The Appellant, Hon. Justice Kalpana H. Rawal was the Deputy Chief Justice of the Republic of Kenya and Vice President of the Supreme Court of Kenya. She was aggrieved by a judgment of the High Court of Kenya dated December 11, 2015 dismissing her petition in which she contended that her retirement age was 74 years as provided in the Constitution of Kenya, 1969 (the repealed Constitution) under which she was first appointed as judge, rather than 70 years as provided in the Constitution of Kenya, 2010 (the Constitution) under which she was appointed as a Supreme Court judge.

The Appellant joined the Judiciary on June 2, 2000 when she was appointed a judge of the High Court under section 61(2) of the repealed Constitution. On December 9 2011, she was appointed a judge of the Court of Appeal before ultimately being appointed to the office of the Deputy Chief Justice and Vice President of the Supreme Court  on May  29, 2013.

The High Court had found that the people of Kenya, in the exercise of their sovereign power, could reduce the retirement age of judges and that such reduction was not violative of security of tenure of judges and that the Constitution did not preserve the retirement of 74 years set for judges by the repealed Constitution as read with the Judicature Act. Accordingly, it concluded that the Appellant’s retirement age was 70 years as provided in section 167(1) of the Constitution.

The main issue in this appeal was therefore one of interpretation of the Constitution to determine whether the appellant’s age of retirement was 74 years or 70 years.

Issues

 i.  Whether the Constitution of Kenya, 2010 elected to apply the retirement age of 70 years to all judges or whether it exempted serving judges and preserved their retirement age at 74 years as provided for under the repealed Constitution.

ii. Whether retiring a Judge at the age of 70 years, when they have a legitimate expectation to serve up to 74 years of age, constituted a violation of their right to property under Article 40(1) of the Constitution.

iii. Whether the section 31(1), (2) of the Sixth Schedule of the Constitution of Kenya, 2010 was the applicable provision for purposes of transition of judges from the repealed constitution to the current Constitution.

iv.Whether in the context of judicial offices, movement from one court to another amounted to a promotion v.  whether the Appellant’s retirement at the age of seventy years, would forfeit their pension bearing accrued entitlements

vi. Whether the repealed and current Constitutions had provision for career path or advancement or progression for individual judges of superior courts or such guarantee of advancement through the tiers of superior courts.

vii.whether the Judicial Service Commission could determine the retirement age of judges

Relevant Provisions of the Law

Constitution of Kenya, 2010

Art 167 -       Tenure of office of the Chief Justice and other judges

(1)       A judge shall retire from office on attaining the age of seventy years, but may elect to retire at any time after attaining the age of sixty-five years.

(2)       The Chief Justice shall hold office for a maximum of ten years or until retiring under clause (1), whichever is the earlier.

(3)       If the Chief Justice’s term of office expires before the Chief Justice retires under clause (1), the Chief Justice may continue in office as a judge of the Supreme Court.

(4)       If, on the expiry of the term of office of a Chief Justice, the Chief Justice opts to remain on the Supreme Court under clause (3), the next person appointed as Chief Justice may be selected in accordance with Article 166(1), even though that appointment may result in there being more than the maximum permitted number of Supreme Court judges holding office.

(5)       The Chief Justice and any other judge may resign from office by giving notice, in writing, to the President.

Sixth Schedule to the Constitution of Kenya, 2010

Section 23-Judges

23. (1) Within one year after the effective date, Parliament shall enact legislation, which shall operate despite Article 160, 167 and 168, establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in Articles10 and 159.

Section 31-Existing offices

31. (1) 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.

Held

1. The principle that people have the power to change, and in particular to reduce the retirement age of judges was so evident to be denied or even disputed. The principle of sovereignty belied such precept. In addition, decisions abound which establish the principle that prescribed retirement age at the time of appointment did not constitute a vested right and did not vest in the employee or official a right to remain in office until that retirement age.
2. The tenured office of a judge was not to be regarded as an item of property in which a judge had proprietary interest until retirement. There was no property right to hold the office of a judge under the Constitution; and that a judge had no right to a salary for a period not served and for services not rendered.
3. Section 32 of the Sixth Schedule to the Constitution of Kenya, 2010 neither created nor conferred pension rights. It only safeguarded and protected the pension formula by prohibiting its alteration to the disadvantage of judges. The phrase the law applicable to pensions in the provision as read with article 160(4) of the Constitution provided constitutional protection to the pension formula that was in force and applicable in determining the pension due to holders of constitutional offices under the repealed Constitution. The provision therefore ensured that the formula should not be less favourable to the retiring person. Section 32 of the Sixth Schedule to the Constitution should also be read with section 31(2), which provided for continuity of service and section 7, which allowed continuation of the Pensions Act as an existing law. Section 32 of the Schedule transited  and  re-enacted  section  112(1)  of  the  repealed  Constitution  into  the Schedule.
4. The pension formula as well as the Appellant’s and other judges’ pension for the period served was guaranteed and protected by the Constitution. Whilst the length or period of service was affected by the retirement age, the only right that the Appellant could claim under section 32 of the Sixth Schedule was the right not to have the pension formula varied to her disadvantage or detriment. Ultimately therefore, the lowering or increasing of the age of retirement did not alter the pension formula while the Appellant’s pension was protected by article 160(4) of the Constitution which transited and substantially re-enacted section 104(3) (4) (5) and (6) of the repealed Constitution.
5. The right to pension for the period in which service had been rendered was a property right and accrued pension was vested property right. There was no evidence on record that such right of the Appellant had been violated or was even threatened. We were however not persuaded that there was a right to pension in respect of an anticipated period in which no service had been actually rendered. In such period there was no contingent or accrued rights.  The Appellant’s contention that her right to property was violated by retrospective application to her of was settled by article 167(1) of the Constitution.
6. That the Constitution provided that a judge should retire upon attaining 70 years of age could not constitute discrimination on grounds of age. The Constitution, which prohibited unequal treatment and discrimination, could not itself be said to discriminate. No provision of the Constitution could be said to be unconstitutional; that would be a major contradiction in terms.
7.  The Constitution and statutes were dotted with many provisions, which set age as a qualification criterion, without the slightest suggestion of discrimination, irrationality or unreasonableness. Indeed article 24(1) as read with article 25 of the Constitution allowed limitation of the right guaranteed by article 27, so long as the conditions set in article 24 were satisfied.
8. In the instant case there was no evidence of deliberate policy of differential treatment adopted by the Respondents. Since taking the view, correct or otherwise, that all judges should retire at 70 years of age, the Respondents had not allowed any other judge to serve beyond 70 years of age, save in compliance with orders issued by the Courts.
9. Article 10 (1) (a) the Constitution anticipated that state organs and public officers like the Respondents, in the discharge of their functions could be called upon to interpret and apply the Constitution. It was not practical to expect a State organ, created by the Constitution and empowered to execute a mandate flowing from the Constitution not to be involved in some form of appreciation and interpretation of the Constitution at threshold level. When there was a dispute however, regarding the interpretation of the Constitution, the final and authoritative interpretation did not lie with the State organ, State officer, or public officer or any other person. That mandate was given to the Judiciary in Chapter 10 of the Constitution.
10. Legitimate expectation was a doctrine that was well-recognized and established in administrative law. For an expectation to be legitimate, therefore, it should be founded upon a promise or practice by a public authority that was expected to fulfill the expectation.
11. Under article 167 (1) of the Constitution, the 1^st Respondent was not competent to make final, authoritative and binding decisions determining the retirement age of judges. It could not make a binding promise on what was the retirement age for any judge. The retirement age for judges was set and fixed by the Constitution and could not be a subject of promise or legitimate expectation derived from the unbinding opinions of the 1^st Respondent. Such opinions could not form the basis for legitimate expectation. A claim based on mere legitimate expectation, without anything more in the form of suffered detriment, could not ipso facto sustain an action founded on the doctrine of legitimate expectation.
12. A judge held a specific constitutional office which office was an office in the Judiciary. A judge was not appointed to the Judiciary or generally to the superior courts. He or she was appointed to a constitutional office of judge of a specific superior court.
13. Not all persons serving in the Judiciary were judges or constitutional office holders whose tenure had constitutional underpinning.  The Appellant’s submission that she was appointed in the Judiciary, which was a successor institution to the former Judiciary, was not tenable in law. Under the former Constitution, the Appellant was appointed to the specific constitutional office of judge of the High Court and judge of the Court of Appeal. It was the office of a judge of the High Court or of the Court of Appeal that was a constitutional office under the repealed Constitution and the holder thereof a constitutional office holder.
14. The concept of promotion entailed advancement from one position to another, involving increase in duties and responsibilities and increase in compensation and benefits.  The Appellant’s contention that after the effective date, she was promoted to a judge of appeal and then to Deputy Chief Justice and Vice President of the Supreme Court and judge of the Supreme Court, the Court doubted whether in the context of judicial offices, movement from one court to another was promotion, unless the term was loosely used.
15. Both the repealed and current Constitutions had no provision for career path advancement or progression for individual judges of superior courts; there is no career path or scheme of service for progression from one superior court to another; and indeed there was no guarantee of advancement through the tiers of superior courts. Individual judges were appointed to specific and designated superior courts. The concept of a judicial career spanning roles in different tiers of courts was applicable in the magistracy and to some extent to other subordinate courts.
16. A judge was appointed to a specific court and that he or she was not promoted from one court to another. A person who was appointed a judge of the High Court or of the Court of Appeal or of Supreme Court was appointed pursuant to separate and distinct articles of the Constitution and held separate and distinct constitutional office with separate and distinct jurisdictions. Even though for example a judge of the High Court could apply and be appointed as Judge of Appeal, the appointment was separate and distinct, not a promotion as loosely understood. Having been a judge in one court before appointment to another was only relevant for continuity of service for pension purposes, and this was what was preserved by section 32 of the Sixth Schedule to the Constitution as read with section 5 of the Pensions Act and article 160 (4) of the 2010 Constitution.
17. Neither the Supreme Court nor office of Deputy Chief Justice nor the office of Judge of the Supreme Court were successors to any office established under the repealed Constitution. Indeed under section 29 of the Sixth Schedule, they were all among the institutions where new appointments were contemplated by the Constitution.
18. Where the Constitution intended to continue in operation a provision or provisions of the former Constitution, it provided so expressly in section 3 of the Sixth Schedule.
19. Section 62(1) of the former Constitution and section 9 of the Judicature Act were not transited and saved into the Constitution by section 7 of the Sixth Schedule. To the extent that those provisions were not transited into the Constitution, the matters that they provided for were, with effect from the effective date provided for by the Constitution.
20. The transitional and consequential provision of the Sixth Schedule that was applicable to judges was section 23. That provision was specific to judges as the side note showed; was tailor made for that purpose; and was clear enough without being clogged or clouded by provisions of miscellaneous provisions of the Schedule.
21. Upon successful vetting, a judge who was in office on the effective date was transited to the Constitution by section 23 of the Sixth Schedule and thereafter the Constitution, rather than the other parts of the Schedule, applied to him or her. The oath of office taken by judges transited to the Constitution by section 23 of the Sixth Schedule was not, as the Respondents contend, evidence of a new appointment, but was a condition precedent prescribed by article 74 of the Constitution to be satisfied even by judges who were successfully vetted.
22. The Constitution did not preserve and save the retirement age of judges prescribed by section 62(1) of the former Constitution as read with section 9 of the Judicature Act and section 31 of the Sixth Schedule to the Constitution, and that with effect from the effective date, the retirement age of all judges was 70 years.

Appeal dismissed.