Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCourt of Appeal Civil Appeal (appeal against High Court JR judgment; memorandum of appeal dated 18th May 2016; earlier appeal C.A. No. 281 of 2015 referred to)· [2016] KECA 262 (KLR)

Ombija v Vetting of Judges and Magistrates Board (Civil Appeal 99 of 2016) [2016] KECA 262 (KLR)

Court of Appeal of Kenya
30 September 2016
6,726 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that the Vetting Board had no power to vet a judge who had already left judicial service, and its decision was invalid.

What this practically means

#

Executive summary

#
The appellant, a former High Court judge, challenged the Vetting Board's determination of 16th March 2016 declaring him unsuitable to serve as a judge. Following Supreme Court orders of 7th March 2016 in Petition No. 1 of 2016, the Board re-vetted him on 15th March 2016, by which time the appellant had communicated his election under section 24(1)(b) of the VJM Act to leave judicial service voluntarily rather than be vetted. Weldon Korir J dismissed the appellant's judicial review motion for want of jurisdiction, reasoning that the Board's decisions and removal processes were beyond judicial questioning under section 23 of the Sixth Schedule. The Court of Appeal identified four issues: whether the appellant had retired before vetting; whether a determination by only three members of the nine-member Board was valid; whether a Supreme Court judgment underpinned the orders of 7th March 2016; and whether the Board complied with the law. The court held the Board has no jurisdiction over non-judges and cannot interrogate the manner of a judge's departure; that vetting jurisdiction vests in the full Board, not a panel of three; that no Supreme Court judgment was exhibited from which the orders could be verified; and that the Determination contained material factual distortions breaching natural justice. The High Court judgment was set aside, the appellant's motion allowed with costs, and the appeal costs awarded to the appellant. The Determination was declared a nullity.

Key legal issues

#
01

Whether the appellant had retired from judicial service at the time of vetting, removing him from the Board's jurisdiction

Holding

He had; the Board had no jurisdiction to vet a non-judge and could not interrogate the manner of his departure.

Reasoning

Section 24(1) of the VJM Act allowed a judge to elect to be vetted or to leave judicial service voluntarily, but the Act does not prescribe mechanics for leaving. A judge's solemn communication of his election sufficed; the Board could not test the formal validity of a resignation addressed to others, since jurisdiction over non-judges is absent and interpretation of resignation validity is for the courts. At vetting the appellant was no longer discharging judicial functions.

p. 10
02

Whether a vetting and determination by a panel of three members of the Board was valid

Holding

Invalid; the jurisdiction to vet vests in the full nine-member Board, not a panel.

Reasoning

Section 21 of the VJM Act confers vetting jurisdiction on the nine-member Board; there was no evidence the matter went to a plenary of the full Board. A panel purporting to act as the Board would usurp its power and any determination of suitability or unsuitability it issued would be invalid. The signing 'by order of the Board' by three members without evidence of a plenary meeting made the Determination non-compliant with the Act.

p. 11
03

Whether the Board had a Supreme Court decision from which the orders of 7th March 2016 were extracted

Holding

No judgment was shown; the findings of the Court of Appeal not shown to be reversed remained intact.

Reasoning

The Supreme Court orders were granted on specific terms capable of verification only against a judgment stated to have been formulated but never exhibited. Since no judgment was produced, the appellant was entitled as a matter of law to rely on prior findings not shown to have been reversed, including the finding of suitability, absent a valid determination of unsuitability.

p. 11
04

Whether the Board complied with the law, natural justice and best practice

Holding

It did not; the Determination contained distortions and was a nullity.

Reasoning

The Determination stated the appellant neither availed himself for vetting nor filed a response, contradicting the affidavit of the Board's CEO confirming that counsel filed a response then withdrew it upon communicating the appellant's retirement. These inconsistencies, plus the claim that the 'Board' vetted the appellant when only a panel of three sat, showed non-compliance with the Act and bad faith.

p. 12

Legal principles established

#
  • The Judges and Magistrates Vetting Board has no jurisdiction to vet a person who has ceased to be a judge or magistrate; it is enough that the judge has taken steps resulting in his ceasing to hold office.
  • The Board has no jurisdiction to probe into or interpret the validity of the manner in which a judge left judicial service; that question is the prerogative of the courts.
  • Section 21 of the VJM Act confers the jurisdiction to vet judges and magistrates upon the nine-member Board itself; a panel of three or more members purporting to sit as the Board usurps that power and its determinations are invalid.
  • Under Article 163(7) of the Constitution all courts other than the Supreme Court are bound by decisions of the Supreme Court, but interlocutory or specific-terms orders must be distinguished from final orders after judgment, and where the judgment from which orders were extracted is not shown, findings not shown to have been reversed remain intact.
  • A determination by the Board rendered without application of natural justice and international best practice, and containing factual distortions, is a nullity.

Court orders

#
  1. 1.The decision of the High Court (Weldon Korir, J.) is set aside
  2. 2.The appellant's notice of Motion to the High Court dated 22nd March 2016 is allowed
  3. 3.The motion is allowed with costs
  4. 4.The costs of the appeal are awarded to the appellant

Authorities

#

Legislation

  • Constitution of Kenya, 2010Section 23 of the Sixth Schedule
  • Constitution of Kenya, 2010Articles 10, 27, 47, 50(1), 159, 160, 167(5), 168, 163(7)
  • The Vetting of Judges and Magistrates Act, 2011 (No. 2 of 2011)Sections 5, 7, 13, 14, 18(1), 18(2)(a)-(h), 19(1), 21, 21(3), 24(1)(a),(b),(2),(3), 33(4)
  • Supreme Court Act, 2011 (No. 7 of 2011)Sections 21(2), 21(3), 24

Cases cited (3)

  • Judges and Magistrates Vetting Board v Nicholas Randa Owano Ombija, Supreme Court Petition No. 1 of 2016
    orders of 7th March 2016
  • Nicholas Randa Owano Ombija v Judges and Magistrates Vetting Board, High Court Petition No. 406 of 2015
  • Nicholas Randa Owano Ombija v Judges and Magistrates Vetting Board, Civil Appeal No. 281 of 2015
    judgment of 14th December 2015
On appeal from
High Court of Kenya
Judicial review notice of motion dated 22nd March 2016
Jurisdiction invoked
First appellate jurisdiction under the Constitution over the High Court's judicial review decision; binding effect of Supreme Court decisions under Article 163(7) considered

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ombija v Vetting of Judges and Magistrates Board (Civil Appeal 99 of 2016) [2016] KECA 262 (KLR)", Case Analysis (2016). Court of Appeal Civil Appeal (appeal against High Court JR judgment; memorandum of appeal dated 18th May 2016; earlier appeal C.A. No. 281 of 2015 referred to). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/262/eng@2016-09-30

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