Judicial Service Commission v Bwanakai & another (Civil Appeal 39 of 2018) [2019] KECA 890 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a public officer's retirement was lawful, confirming written replies can count as a fair hearing without an oral one.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ELRC suit was res judicata in light of the earlier judicial review suit
- 2.Whether the learned Judge erred in determining issues said not to have been pleaded
- 3.Whether the 1st respondent's retirement in the public interest complied with Paragraph 27 of the Third Schedule to the Judicial Service Act, as to procedure and reasons
- 4.Whether the awards of salary arrears, 12 months' compensation and interest were justified
Key legal issues
#Whether the ELRC suit was barred by res judicata given the earlier judicial review suit
The ELRC suit was not res judicata; the issue in it (retirement in public interest) was not directly and substantially in issue in the judicial review suit, which concerned the initial dismissal for gross misconduct.
The court restated the five conjunctive elements of res judicata under Section 7 of the Civil Procedure Act and confirmed the doctrine applies to all categories of matters, including judicial review. Applying them, the judicial review suit dealt with the dismissal on grounds of gross misconduct, while the ELRC suit concerned the subsequent retirement in public interest; different issues were in play, so res judicata was not established.
Whether the trial court could determine procedural fairness though procedure was not pleaded
The trial Judge could not be faulted; an allegation of unfair dismissal automatically engages an inquiry into procedural fairness as well as the validity of reasons.
While parties are generally bound by their pleadings and courts should not pronounce on unpleaded issues, whenever wrongful or unfair dismissal is alleged the court must interrogate both the justifiability of the reasons for termination and the procedural fairness of the process. The claim of unfair retirement therefore necessarily opened the procedure to scrutiny.
Whether the retirement in public interest complied with Paragraph 27 of the Third Schedule to the Judicial Service Act
The retirement complied with Paragraph 27; the 1st respondent was notified of the complaints, given an opportunity to show cause in writing, and the charges were substantiated on a balance of probabilities by the Chief Kadhi's report.
The power under Paragraph 27 is discretionary and the provision prescribes its confines. The Chief Justice considered the Chief Kadhi's report, the officer was called to show cause and responded, and the Commission decided the matter. Absence of an oral hearing did not breach the right to a fair hearing; written correspondence sufficed. The officer was not entitled to minutes or reports under the proviso to Paragraph 23, the delay was partly attributable to him, and the letters of recommendation were not a required consideration.
Whether the awards of salary arrears, compensation and interest should stand
Since the retirement was lawful, the damages and interest awards had no foundation and fell with the judgment; the withheld salary had already been released.
Guided by the principle that an appellate court will not disturb quantum unless the judge acted on a wrong principle or the award is an entirely erroneous estimate, the court held that a lawful retirement left no basis for any award. Both parties had also conceded at trial that the salary withheld during interdiction had since been released under the retirement letter.
Legal principles established
#- The doctrine of res judicata applies to matters of all categories, including judicial review proceedings.
- The five elements of res judicata under Section 7 of the Civil Procedure Act must all be satisfied conjunctively.
- When unfair or wrongful dismissal is alleged, a court examines both the validity of the reasons for termination and procedural fairness, even where procedure is not specifically pleaded.
- A fair hearing in disciplinary proceedings is not determined solely by its oral nature; a hearing conducted through an exchange of written correspondences may satisfy the audi alteram partem rule.
- An appellate court will not disturb a trial judge's award of damages unless it acted on a wrong principle or the amount is an entirely erroneous estimate.
Court orders
#- 1.The appeal is allowed
- 2.The trial court's judgment dated 15th December 2017 is set aside in its entirety and substituted with an order dismissing the 1st respondent's suit
- 3.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (the judgment does not cite the specific constitutional or statutory provision)
Relief refused
#Retention of the ELRC declarations and awards (salary arrears, 12 months' compensation, pension facilitation and interest)
Having found the retirement procedurally fair and based on valid reasons, there was no basis for the awards
Costs
This being an employment dispute we make no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is also worth noting that contrary to Mr. Gachanga's submissions the doctrine of res judicata applies in respect of matters of all categories.
In our view, the fact that the 1st respondent was not called for an oral hearing by itself did not violate his right to a fair hearing.
All in all, we find that the 1st respondent's retirement was procedurally fair and based on valid reasons.
In the end, we find that the appeal herein has merit and we hereby allow the same. We set aside the trial court's judgment dated 15th December, 2017 in its entirety and substitute the same with an order dismissing the 1st respondent's suit. This being an employment dispute we make no orders as to costs.
Issues in the judgment
#Paragraph numbering in the judgment is irregular (para 12 is followed by para 26, then paras 23/25/26 recur out of sequence).
Counsel's name appears with two spellings in the judgment (Mr. Gichana and Mr. Gachanga).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission v Bwanakai & another (Civil Appeal 39 of 2018) [2019] KECA 890 (KLR)", Case Analysis (2019). Court of Appeal at Mombasa (appeal against ELRC judgment of Rika, J. dated 15th December 2017; number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/890/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.