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Supreme CourtDismissedPetition 3 of 2021

Karani v Judicial Service Commission

Supreme Court of Kenya
8 July 2022
Mohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
17,766 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~71 min to read original · ~4 min brief

The bottom line

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Judicial immunity does not shield a magistrate from removal by the Judicial Service Commission.

What this practically means

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The Supreme Court dismissed a former magistrate’s appeal against his dismissal by the Judicial Service Commission (JSC). The court ruled that a judge’s immunity from lawsuits does not protect them from being removed for misconduct. It also found that a 15-month delay in disciplinary proceedings was reasonable given the JSC’s workload and that the JSC’s overlapping roles did not violate fair hearing rights.

Executive summary

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The appellant, a former Principal Magistrate, was dismissed by the Judicial Service Commission (JSC) for delivering a judgment a day earlier than scheduled and in the presence of only one party. He challenged his dismissal at the Employment and Labour Relations Court (ELRC), which found that his right to expeditious administrative action under Article 47 was violated due to a 15-month delay in the disciplinary process, awarding him Ksh 1,000,000 in damages and costs. Both parties appealed to the Court of Appeal. The Court of Appeal allowed the JSC's appeal, setting aside the damages and costs award, and dismissed the appellant's cross-appeal in its entirety. The appellant then appealed to the Supreme Court under Article 163(4)(a) of the Constitution. The Supreme Court first dismissed the JSC's preliminary objection challenging its jurisdiction, finding that the case involved the interpretation and application of the Constitution. On the merits, the Supreme Court held that the appellant was afforded fair hearing, fair labour practices, and fair administrative action under Articles 41, 47, and 50. The court found that the JSC followed the procedure set out in the Judicial Service Act and its Third Schedule, and that the overlapping functions of the JSC did not violate the nemo judex in causa sua principle as the statute provided inbuilt safeguards. On judicial immunity under Article 160(1) and (5), the court held that while judicial officers are immune from civil or criminal suits for acts done in good faith, this immunity does not extend to removal proceedings before the JSC. The court also held that the appellant was precluded from raising the defence of judicial immunity for the first time on appeal. Regarding the 15-month delay, the court found that while there was a delay, it was not unreasonable given the JSC's circumstances, including its part-time nature, meeting caps imposed by the Salaries and Remuneration Commission, and the priority of recruiting a new Chief Justice. The court distinguished cases where employers had prescribed timelines in their disciplinary policies. The Supreme Court dismissed the appeal in its entirety and ordered each party to bear its own costs at all levels.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this court is clothed with the requisite jurisdiction to determine this appeal
  2. 2.Whether the appellant was afforded the right to fair labour practices, administrative actions and fair hearing under articles 41, 47 and 50 of the Constitution
  3. 3.Whether the appellant's impugned action was protected by judicial immunity and presumption of good faith pursuant to article 160(1) and (5)
  4. 4.Whether the fifteen (15) months it took the respondent to conduct the appellant's disciplinary proceedings was unreasonable and if so, whether the appellant is entitled to compensation
  5. 5.Who shall bear the costs of the appeal

Key legal issues

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01

Whether the Supreme Court had jurisdiction under Article 163(4)(a) of the Constitution

Holding

The Supreme Court had jurisdiction because the issues before the lower courts involved the interpretation and application of the Constitution, specifically articles 41, 47, 160, and 172.

Reasoning

The court examined the record and found that the petition before the ELRC was brought under several constitutional articles, and both the ELRC and the Court of Appeal interpreted and applied provisions of the Constitution. The court distinguished this from cases where constitutional provisions are merely cited in abstract, finding that here the constitutional issues formed the gist of the cause at the Court of Appeal.

p. 22
02

Whether the appellant was afforded the right to fair hearing, fair labour practices and fair administrative action

Holding

The appellant was afforded these rights; the respondent followed the elaborate procedure set out in Article 172, section 32 of the Judicial Service Act and the Third Schedule.

Reasoning

The court found that the Chief Justice framed charges, the appellant was given an opportunity to respond, he appeared before a disciplinary committee where he was heard, and the committee prepared a report. The court rejected the argument that the overlapping functions of the JSC violated nemo judex in causa sua, noting that the Third Schedule ensures different actors take on different roles and that the appellant did not challenge the constitutionality of the statute creating the overlap.

p. 31
03

Whether the appellant's action was protected by judicial immunity under Article 160(1) and (5)

Holding

Judicial immunity protects a judicial officer from civil or criminal suit for acts done in good faith, but does not immunize the officer from removal proceedings before the Judicial Service Commission.

Reasoning

The court restated its decision in Bellevue Development Company Ltd v Francis Gikonyo & 3 others, holding that while a judge is absolutely immune from suit for judicial acts, an aggrieved party may institute proceedings before the JSC for removal. The court also held that the appellant was precluded from raising the defence of judicial immunity for the first time on appeal, as he should have raised it before the disciplinary committee.

p. 34
04

Whether the 15-month delay in conducting disciplinary proceedings was unreasonable and whether the appellant was entitled to compensation

Holding

The delay was not unreasonable in the totality of circumstances, and the appellant was not entitled to compensation.

Reasoning

The court considered the respondent's explanations: it is a part-time commission, its meetings were capped at eight per month by the Salaries and Remuneration Commission, and it was engaged in the priority exercise of hiring a new Chief Justice. The court distinguished cases where employers had set timelines in their disciplinary policies, noting the JSC had no such prescribed timeline. The court also distinguished Judicial Service Commission v Daniel Ochenja where the delay was 26 months, nearly a year longer.

p. 37

Legal principles established

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  • A statutory body performing quasi-judicial functions does not automatically violate the nemo judex principle if it remains impartial and independent.
  • Judicial immunity under Article 160 protects a judge from civil or criminal suits but not from removal proceedings before the JSC.
  • Delay in disciplinary proceedings is not automatically a rights violation; the court must assess whether the delay is justifiable in the circumstances.
  • A party cannot raise the defence of judicial immunity for the first time on appeal; it must be raised before the disciplinary body.
  • The JSC’s disciplinary process, as set out in the Judicial Service Act and its Third Schedule, satisfies fair hearing requirements.

Court orders

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  1. 1.The petition of appeal dated January 20, 2021 and filed on February 1, 2021 be and is hereby dismissed.
  2. 2.Each party shall bear its own costs at the Employment and Labour Relations Court, Court of Appeal and the Supreme Court.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 305 of 2019
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Setting aside of the Court of Appeal judgment

The Supreme Court found no merit in the appeal and dismissed it.

p. 37

Declaration that the respondent violated the appellant's constitutional rights

The court found the appellant was afforded fair hearing, fair labour practices and fair administrative actions.

p. 31

Reinstatement to the position of Principal Magistrate

The court upheld the dismissal as lawful and found the proceedings before the respondent were lawful.

p. 34

Award of Ksh 1,000,000/- damages for delay

The court found the delay was not unreasonable in the totality of circumstances.

p. 37

Enhanced compensation of Ksh 5,000,000/-

The court declined to award any compensation for delay.

p. 37

Costs

Each party shall bear its own costs at the Employment and Labour Relations Court, Court of Appeal and the Supreme Court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The petition of appeal dated January 20, 2021 and filed on February 1, 2021 be and is hereby dismissed.
p. 37 Final orders - dismissal of appeal
Each party shall bear its own costs at the Employment and Labour Relations Court, Court of Appeal and the Supreme Court.
p. 37 Costs order
We reiterate that the mere overlap of roles by a statutory body carrying out quasi- judicial functions is not in itself contrary to the principle of nemo judex in causa sua.
p. 28 Nemo judex in causa sua - statutory bodies
Delay on its own, does not lead the court to conclude that there is infringement of rights. Where there is delay, the court must interrogate whether the same is justifiable and thus excusable, or not.
p. 36 Delay and infringement of rights
It is our conclusion and finding that the appellant's actions though protected by judicial immunity pursuant to article 160(1) and (5) in regards to criminal and civil proceedings, were not immunized from proceedings seeking his removal.
p. 34 Judicial immunity - scope

Key timeline

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2019
The appellant, a Principal Magistrate, delivers a judgment one day early in the presence of only one party.
2020
The JSC dismisses the magistrate after disciplinary proceedings; the ELRC finds a violation of Article 47 and awards Ksh 1,000,000 damages.
2021
The Court of Appeal sets aside the damages award and upholds the dismissal.
2021-02-01
The appellant files a petition of appeal to the Supreme Court.
2023
The Supreme Court dismisses the appeal, affirming the removal.

Practical implications

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For lawyers

Challenge JSC removal at the right stage

When representing a judicial officer facing JSC discipline, raise constitutional defences like judicial immunity at the earliest opportunity—before the disciplinary committee. Raising them for the first time on appeal will be barred. Also, argue delay only if it is clearly unreasonable; the court will examine the JSC’s workload and statutory constraints.

For businesses

Disciplinary processes must be justified

If your company has a disciplinary policy, ensure timelines are clearly set. Delays of 15 months may be justified if the body is part-time and has competing priorities. However, this case shows that courts will closely scrutinise the reasons for delay. Document every step and explain why a longer period was necessary.

For individuals

Know your rights in public body discipline

If you face disciplinary action by a public body like the JSC, you are entitled to a fair hearing. The body can both investigate and decide, as long as it follows a fair procedure. A delay of over a year is not automatically unfair—the body can defend it by showing it was busy with other urgent matters. Keep records of all communications.

Frequently asked questions

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Can a judge be sued for a mistake in court in Kenya?+

No, a judge has absolute immunity from criminal or civil lawsuits for acts done in their judicial capacity, even if they exceed their jurisdiction. However, this immunity does not protect them from being removed by the Judicial Service Commission for misconduct.

What is the process for removing a judge in Kenya?+

The Judicial Service Commission follows a procedure set out in Article 172 of the Constitution, the Judicial Service Act, and the Third Schedule. The Chief Justice frames charges, the judge responds, a disciplinary committee hears the case, and the JSC makes a final decision. The judge has the right to be heard.

Does a delay in disciplinary proceedings violate my rights in Kenya?+

Not automatically. The court will examine whether the delay is justifiable. In this case, a 15-month delay was found reasonable because the JSC is a part-time body with limited meetings and had to prioritise hiring a new Chief Justice. You must show that the delay was unreasonable in your specific circumstances.

Can the Judicial Service Commission investigate and also decide on a judge's removal in Kenya?+

Yes. The Supreme Court held that the JSC’s overlapping roles—investigating and adjudicating—do not violate the right to a fair hearing, as long as the JSC follows the impartial procedure set out in the Judicial Service Act and the Constitution. The Act ensures different actors handle different steps.

Later judgments citing this (18)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karani v Judicial Service Commission", Case Analysis (2022). Petition 3 of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/37/eng@2022-07-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.