Judicial Service Commission v Ochenja (Civil Appeal 312 of 2019) [2020] KECA 3 (KLR)

The court adopted the principle that judicial review examines the decision-making process, not private rights or merits, citing the JSC v Shollei formulation that procedural fairness, legality and reasonableness are the issues. The Judge found witnesses (Okoth Were and others) testified before the panel without the respondent being invited, present, or able to cross-examine, and documents were used against him without prior supply. That was a process inquiry, not a retrial or merit substitution.

Regulation 25(5) mandates the officer be present to question witnesses and that no documentary evidence be used unless previously supplied. The Committee heard Okoth Were on oath at a meeting from which the respondent was absent, and other witnesses (Kaguru, registry staff, clerks) were examined in the disciplinary report without his participation. This violated the mandatory procedure and Articles 47 and 50 of the Constitution, rendering the process unfair.

Article 47 and the FAAA demand administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The appellant's explanations - that it is a part-time Commission, that meetings were capped by the SRC, and that it was recruiting a new CJ and other judges - did not justify the delay. Interdiction inflicts anxiety on an employee, and the respondent, a career judicial officer of 26 years with a clean record, could not have his rights superseded by the appellant's other activities.

Article 160(5) protects a member of the Judiciary for anything done in good faith in the lawful performance of a judicial function. The respondent was the duty court that week; there was no evidence he breached the Magistrates' Courts Act or any law in handling the skeleton file or converting bail to fine. In the absence of established misconduct, the disciplinary action could not stand, and the immunity analysis favoured the respondent.

Applying Kenya Airways v Aviation & Allied Workers Union, reinstatement is discretionary and not automatic, but is one of the remedies under Sections 49(3) and 50 of the Employment Act. The factors - long service, no evidence of poor performance, difficulty of obtaining alternative employment at his age, and the large-organization point - justified the order, and the appellate court fully agreed with the Judge's factors and reasoning.

The Judge found breaches of Articles 41 and 47 and other laws but made no finding on remedies. The court held that having found breaches it was duty bound to determine whether damages were available, and in a first appeal it could re-open the question. Considering that the respondent had been reinstated and was out of office only about 26 months, Kshs.2,000,000 was appropriate, distinguishing Peter M. Kariuki where Kshs.15,000,000 was awarded without reinstatement.