Deputy Chief Justice Kalpana Rawal has lost round two of her struggle blocking her retirement at 70 years after the Court of Appeal dismissed her petition to challenge the High Court decision that had given the same ruling.
This essentially means that the 70-year-old Judge of the Supreme Court is only left with the last battle in saving her job as she heads to the highest Court in the land to challenge the Court of Appeal decision.
In her defense, the veteran Judge had argued that she was sworn into office under the old Constitution where the retirement age of a judge had been pegged at 74, contrary to the new Constitution that lowered the retirement age to 70.
She had argued that the ruling by the High Court that she retires at 70 amounts to discrimination based on old age, an analogy that the court dismissed.
However, Justice Rawal has declared that she will challenge the Court of Appeal decision at the Supreme Court, but she will not be part of the bench.
Under article 163 that establishes the Supreme Court, for any case to be determined there, a quorum of 5 judges is required.
As it stands now, the quorum is possible but only if the appeal is filed immediately as the retirement of the Chief Justice Dr Willy Mutunga is due in two weeks time.
Also battling with the subject of retirement is suspended Supreme Court Judge Justice Philip Tunoi, with the 72-year-old insisting that he should retire at 74.