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Court of AppealPartially AllowedCivil Appeal (from Industrial Court Petition No. 39 of 2013)· [2014] KECA 334 (KLR)

Judicial Service Commission v Shollei & another (Civil Appeal 50 of 2014) [2014] KECA 334 (KLR)

Court of Appeal
19 September 2014
HOH. M. OkwenguGKG. B. M. KariukiPKP. O. Kiage
40,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~161 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated the JSC's power to remove former Chief Registrar Gladys Boss Shollei, ruling her dismissal followed fair procedures.

What this practically means

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Executive summary

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A unanimous bench of the Court of Appeal (Okwengu, G.B.M. Kariuki and Kiage, JJ.A, each delivering a separate judgment) allowed the Judicial Service Commission's appeal against the Industrial Court judgment (Nduma, PJ, 7th March 2014) which had quashed the removal of Gladys Boss Shollei as Chief Registrar of the Judiciary and declared violations of her constitutional rights. The Court first affirmed that the Industrial Court had jurisdiction to entertain the constitutional petition, since the Bill of Rights enforcement jurisdiction is not exclusive to the High Court and rights violations ancillary to employment disputes fall within the Industrial Court's competence. The Court then held that the JSC had jurisdiction to discipline and remove the Chief Registrar on its own motion under Article 172(1)(c) of the Constitution and Section 12 of the Judicial Service Act; her external accountability to Parliament and the Auditor-General did not displace internal accountability to her employer, and her denial of accountability constituted insubordination. Section 32 and the Third Schedule of the Act, requiring a committee or panel, apply only to other judicial officers and staff, not the Chief Registrar. Critically, the Court held that disciplinary proceedings are civil, not quasi-criminal, so the Criminal Procedure Code and criminal standards on charges and pleas had no application, and Article 50(2) (fair trial of an accused) does not govern disciplinary hearings. The bias findings below could not stand because the circumstances grounding the alleged bias, including the 'trove of emails', were never established on oath. The Industrial Court judgment and all consequential orders were set aside, the petition dismissed, and costs awarded to the JSC.

Key legal issues

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01

Jurisdiction of the Industrial Court to enforce the Bill of Rights

Holding

The Industrial Court, being a court with the status of the High Court under Article 162(2)(a) and armed with Section 12(3) of the Industrial Court Act, may entertain a petition for redress of fundamental rights violations arising from an employment relationship; the Constitution does not confer exclusive jurisdiction on the High Court.

Reasoning

Article 23(2) contemplates legislation giving original jurisdiction to subordinate courts; Article 20 obliges all courts to apply and develop the Bill of Rights; Article 23(3) empowers 'a court' to grant appropriate relief including judicial review. Excluding the Industrial Court from such jurisdiction would defeat the purpose of specialized courts and foster forum shopping. The transfer of the petition from the High Court to the Industrial Court was therefore proper.

p. 21
02

Jurisdiction of the Judicial Service Commission to discipline the Chief Registrar

Holding

The JSC had jurisdiction to initiate and conduct disciplinary proceedings against the Chief Registrar suo moto, and to remove her, under Article 172(1)(c) of the Constitution and Section 12 of the Judicial Service Act.

Reasoning

The Constitution establishes the office of Chief Registrar but provides no specific removal procedure; the appointment was made under Article 172(1)(c) read with Section 9 of the Judicial Service Act, and the same provision empowers the Commission to discipline Registrars. External accountability to Parliament and the Auditor-General does not displace internal accountability to the employer. Article 252(1) permits investigations on the Commission's own initiative, so no external report was a prerequisite.

03

Applicable removal procedure - Section 12 vs Section 32 and Third Schedule

Holding

Section 12 of the Judicial Service Act exclusively governs removal of the Chief Registrar; Section 32 and the Third Schedule apply only to other judicial officers and staff. The learned judge misdirected himself in holding that Section 32 and Regulation 25 of the Third Schedule were mandatory in the Chief Registrar's removal.

Reasoning

The Chief Registrar is defined separately in Section 2 of the Act and does not fall within the definitions of 'judicial officer' or 'judicial staff'. The legislature created a distinct, special procedure for the senior office of Chief Registrar requiring action by the full Commission, whereas the Third Schedule process is committee-based and appropriate for other officers. The Commission's error, if any, was in attempting to comply with the inapplicable Third Schedule.

p. 28
04

Quasi-criminal characterisation of disciplinary proceedings

Holding

The disciplinary proceedings were not quasi-criminal; the Criminal Procedure Code and criminal law standards on framing of charges, pleas and admissions had no application.

Reasoning

The disciplinary process was an administrative/quasi-judicial function anchored on the employment contract, incapable of imposing penal sanctions. The learned judge stated he was not imposing criminal law requirements but then proceeded to do exactly that, testing the allegations against Section 137 of the Criminal Procedure Code and the plea-taking guidelines in Adan v Republic. This was a fundamental misdirection that vitiated his conclusions on the framing of allegations and the admissions.

p. 27
05

Bias and reasonable apprehension of bias

Holding

The finding of reasonable apprehension of bias could not stand because the judge failed to establish the circumstances anchoring the bias allegations, which rested on unverified reports and emails of doubtful authenticity not sworn on oath.

Reasoning

The correct test is the objective reasonable apprehension of a fair-minded and informed observer (Magill v Porter; Attorney-General v Anyang' Nyong'o). But the first step is ascertaining the circumstances upon which the allegation is anchored. The respondent's allegations against the Chief Justice and Commissioner Ahmednassir were not deposed to on her own knowledge, the 'trove of emails' were of undisclosed source and authenticity, and it is one thing to allege facts and another to establish them.

p. 34
06

Fair hearing and fair administrative action

Holding

The respondent's rights under Article 50(1) and Article 47 were not violated; she was informed of the case against her in writing, given 35 days to respond, attended with her advocate, and received written reasons for her removal.

Reasoning

Section 12(2) of the Judicial Service Act required only that she be informed of the case in writing and given reasonable time to defend herself, both of which occurred. No automatic right to a public hearing or to call witnesses attaches to disciplinary proceedings of a quasi-judicial nature, and rejection of those requests was not unreasonable given pending external investigations. The termination letter, read with Section 12, communicated the grounds, and a detailed press statement supplemented it.

Legal principles established

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  • The Industrial Court has jurisdiction to hear and determine petitions seeking redress of violations of fundamental rights arising from an employment relationship, and constitutional issues ancillary and incidental to employment and labour disputes before it.
  • Article 50(2) of the Constitution (fair trial of an accused person) applies only to criminal trials and has no application to disciplinary proceedings; disciplinary proceedings are governed by the right to fair hearing under Article 50(1) and fair administrative action under Article 47.
  • The Criminal Procedure Code and criminal law standards on framing of charges and taking of pleas have no application to disciplinary proceedings, which are of a civil nature between employer and employee.
  • The procedure for removal of the Chief Registrar of the Judiciary is exclusively that prescribed by Section 12 of the Judicial Service Act; Section 32 and the Third Schedule of the Act, which provide for a committee or panel, apply only to other judicial officers and staff and not to the Chief Registrar.
  • The Judicial Service Commission may initiate disciplinary proceedings against the Chief Registrar of the Judiciary on its own initiative, without a report or recommendation from external oversight bodies, by virtue of Article 252 of the Constitution.
  • The test for apparent bias is the objective 'reasonable apprehension of bias' test, but the perception of bias can only be based on established facts; it is insufficient to found a finding of bias on unestablished or unverified allegations.
  • The Chief Registrar of the Judiciary is accountable and answerable to the Judicial Service Commission notwithstanding external accountability to Parliament, the Auditor-General and other bodies; defiance of that accountability constitutes insubordination justifying disciplinary action.
  • On an appeal limited to matters of law from the Industrial Court, the Court of Appeal's power to re-consider and re-evaluate evidence is confined to conclusions of law, which it may disturb only if they cannot reasonably be drawn from the findings of fact of the lower court.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the Industrial Court (Nduma, PJ) dated 7th March 2014 and all consequential orders set aside
  3. 3.The respondent's petition dated 1st November 2013 (Industrial Court Petition No. 39 of 2013) dismissed with costs
  4. 4.Costs of the appeal awarded to the appellant against the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 171(1), 171(3), 172(1), 172(1)(c), 252
  • Constitution of Kenya, 2010Article 161(2)(c), 23(1), 23(2), 23(3), 20(3), 20(4)
  • Constitution of Kenya, 2010Article 165(3)(b), 162(2)(a), 164(3), 259(11)
  • Constitution of Kenya, 2010Article 50(1), 50(2), 47(1), 47(2), 47(3), 35(1), 27(1), 236(b), 28, 25(c)
  • Constitution of Kenya, 2010Article 10(2)(b), 159(2)(d), 160, 226(2), 249(2), 253, 163(7), 173, 22
  • Constitution of Kenya, 2010Article 73(1), 41, 2, 3(1), 19(1), 24, 168, 79, 157, 266
  • Judicial Service Act, 2011 (No. 1 of 2011)Section 12(1), 12(2), 32, 9, 8, 2, 21, 3, 7 (Third Schedule, Regulations 25 and 26)
  • Industrial Court Act, 2011 (Cap 234)Section 12(1), 12(3), 17
  • Court of Appeal RulesRule 29(1), 75, 77, 84
  • Appellate Jurisdiction ActSection 3(1)
  • Criminal Procedure Code (Cap 75)Section 137 (on framing of charges)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 4, 11, 13, 23
  • Civil Procedure Rules, 2010Order 19 Rule 3
  • Commission on Administrative Justice Act, 2011Section 2(1)
  • Promotion of Administrative Justice Act (South Africa), No. 3 of 2000Section 2, Section 3
  • Elections ActSection 85A
  • Public Finance Management Act, 2012
  • Public Procurement and Disposal Act, 2005
  • Interpretation and General Provisions Act (Cap 2)

Cases cited (41)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & Others
    Petition No. 2B of 2014 [2014] eKLR
  • Timamy Issa Abdalla v Swaleh Salim Imu & Others
    Civil Appeal No. 36 of 2013
  • Prof. Daniel N. Mugendi v Kenyatta University & Others
    Nairobi Civil Appeal No. 6 of 2012 [2013] eKLR
  • United States International University (USIU) v Attorney General & 2 Others
    [2012] eKLR
  • Seven Seas Technologies v Eric Chege
    Nairobi HC Misc. Appl. No. 29 of 2013 (Unreported)
  • Maitha v Said & Another
    [1999] 2 EA
  • Michael Dowling v Workplace Safety & Insurance Board
    [2004] CAN LII 43692
  • Nampak Corrugated Wadeville v Khoza
    (JA14/98) [1998] ZALAC 24
  • BA Imonikhe v Unity Bank PLC
    S.C 68 of 2001
  • Selvarajan v Race Relations Board
    [1976] 1 All ER 12
  • Pharmaceutical Manufacturers Association of South Africa & Another: Ex parte President of the Republic of South Africa & Others
    (CCT 31/99) [2000] ZACC 1; 2000 (2) SA 674
  • Pastoli v Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • R v Gough
    [1993] AC 646
  • Webb v The Queen
    (1994) 181 CLR 41
  • Medicaments and related Classes of Goods
    (2001) 1 WLR 700
  • Magill v Porter; Magill v Weeks
    [2001] UKHL 67; [2002] All ER 465
  • Attorney-General v Anyang' Nyong'o & Others
    [2007] 1 EA 12
  • President of the Republic of South Africa & Others v South Africa Rugby Football Union & Others
    (CCT 16/98) [1998] ZACC 21
  • Dry Associates Limited v Capital Market Authority & Another
    [2012] eKLR
  • Hon. Martin Nyaga Wambora & Others v The Speaker of the Senate & Others
    Kerugoya HC Petition No. 3 of 2014 (Unreported)
  • Adan v The Republic
    [1973] EA 445
  • Dande v Republic
    [1977] KLR 71
  • Cherere s/o Gakuhi v R
    [1955] EACA 478
  • Lusiti v The Republic
    [1977] KLR 143
  • Kenya Ports Authority v Kuston (Kenya) Limited
    (2009) 2 EA 212
  • Mbogo & Anor v Shah
    (1968) EA 93
  • Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance
    [1968] 2 QBD 497
  • Mersey Docks & Harbour Board
    [1946] 62 TLR 427
  • Yewens
    [1880] 6 QBD 530
  • Sinha and General Medical Council
    [2009] EWCA Civ 80
  • Dr Anil Mussani and College of Physicians and Surgeons of Ontario
    (2003) 64 O.R. (3d) 641
  • Cooper v Wilson
    [1937] 2 All ER 726
  • Ridge v Baldwin
    [1963] 2 All ER 66; [1964] AC
  • Landry v Legal Services Society
    [1986] CanLII (1165) (BC CA)
  • Laws v London Chronicle Ltd
    [1959] 1 WLR 690
  • British Leyland UK Limited v Swift
    [1981] IRLR 91
  • Georges Brosseau v The Alberta Securities Commission
    [1989] 1 R.C.S 301
  • Captain Harry Gandy v Caspair Air Charters Ltd
    [1956] EA CA 159
  • Nairobi City Council v Thabit Enterprises Ltd
    [1995-98] 2 EA 231
  • Blay v Pollard & Morris
    [1930] 1 KB 682
  • Mumo Matemu v Trusted Society of Human Rights Alliance
On appeal from
Industrial Court of Kenya
Petition No. 39 of 2013
Jurisdiction invoked
Article 164(3) of the Constitution as read with Section 17 of the Industrial Court Act (appeal from the Industrial Court on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "Judicial Service Commission v Shollei & another (Civil Appeal 50 of 2014) [2014] KECA 334 (KLR)", Case Analysis (2014). Civil Appeal (from Industrial Court Petition No. 39 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/334/eng@2014-09-19

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