Ombija v Vetting of Judges and Magistrates Board (Civil Appeal 99 of 2016) [2016] KECA 262 (KLR)
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
#Key legal issues
#Whether the appellant had retired from judicial service at the time of vetting, removing him from the Board's jurisdiction
He had; the Board had no jurisdiction to vet a non-judge and could not interrogate the manner of his departure.
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.
Whether a vetting and determination by a panel of three members of the Board was valid
Invalid; the jurisdiction to vet vests in the full nine-member Board, not a panel.
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.
Whether the Board had a Supreme Court decision from which the orders of 7th March 2016 were extracted
No judgment was shown; the findings of the Court of Appeal not shown to be reversed remained intact.
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.
Whether the Board complied with the law, natural justice and best practice
It did not; the Determination contained distortions and was a nullity.
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.
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.The decision of the High Court (Weldon Korir, J.) is set aside
- 2.The appellant's notice of Motion to the High Court dated 22nd March 2016 is allowed
- 3.The motion is allowed with costs
- 4.The costs of the appeal are awarded to the appellant
- 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.