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Court of AppealDismissedCivil Appeal (Nairobi)· [2021] KECA 322 (KLR)

Chief Justice and President of the Supreme Court of Kenya & another v Khaemba (Civil Appeal 522 of 2019) [2021] KECA 322 (KLR)

Court of Appeal of Kenya
17 December 2021
ASAsike-MakhandiaSKS. ole KantaiPNP. Nyamweya
5,249 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a judicial officer cannot be suspended before proper disciplinary charges are laid, and never without pay.

What this practically means

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Executive summary

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This is a unanimous first appeal by the Chief Justice and the Judicial Service Commission against a decision of the Employment and Labour Relations Court in Nairobi ELRC Petition No 100 of 2019, which had declared the Chief Justice's letter of 13th June 2019 suspending a Principal Magistrate illegal, quashed it, ordered payment of withheld salaries and benefits, and directed reinstatement. The Court of Appeal framed three issues: the conditions applicable to the Chief Justice's power to suspend a judicial officer under the Third Schedule to the Judicial Service Act; whether a judicial officer may be suspended without pay; and whether courts may interfere with disciplinary processes initiated under the Third Schedule. On the first issue, the Court held that paragraph 17(2) requires dismissal proceedings under paragraph 25 to be undertaken first, including framing of charges, an opportunity to respond, and laying of the matter before the JSC; the impugned suspension preceded any charge and was therefore unfair and illegal. On the second issue, the Court held that no provision authorises suspension without pay, penal provisions must be construed restrictively, and only the JSC may determine suspension pay. On the third issue, while exhaustion of alternative remedies is imperative, courts retain residual jurisdiction to intervene where there is illegality, procedural irregularity, prejudgment of culpability, and extreme hardship; here nothing valid remained to remit. The appeal was dismissed with costs to the respondent, the trial court's orders upheld, and the Registrar directed to send the judgment to the Attorney General for the identified amendments and regulations.

Key legal issues

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01

Conditions precedent to the Chief Justice's power to suspend a judicial officer under paragraph 17(2) of the Third Schedule to the Judicial Service Act

Holding

Suspension under paragraph 17(2) requires that dismissal proceedings under paragraph 25 first be undertaken: an inquiry, framing and forwarding of charges, an opportunity for the officer to respond, and laying of the charges before the Judicial Service Commission. The Chief Justice suspended the respondent before any charge was framed and before JSC approval, and thereby acted unfairly and illegally.

Reasoning

A plain reading of paragraph 25 discloses four stages that must precede any opinion that an officer ought to be dismissed. The 30th May 2019 letter was merely an inquiry, not a charge; the suspension with nil pay preceded the framing of charges and the Commission's decision. Article 47 of the Constitution and the Fair Administrative Action Act reinforce the procedural fairness required before suspension under paragraph 17(2).

p. 3
02

Whether a judicial officer can be suspended without pay

Holding

No. There is no express or implied provision authorising suspension without pay; alimentary allowance under paragraph 17(3) is the entitlement, and its terms are for the Judicial Service Commission to determine by regulations, not the Chief Justice.

Reasoning

The terms of a statute withholding pay are penal and must be construed restrictively; a person should not be penalised except under clear law. The respondent's entitlement to alimentary allowance is grounded in constitutional fair labour practices and reasonableness. The Chief Justice, not being the repository of the power to determine pay, could not lawfully impose nil salary.

p. 12
03

Whether courts can interfere with a disciplinary process initiated under the Third Schedule to the Judicial Service Act

Holding

Although exhaustion of alternative remedies is a constitutional and legal imperative, courts retain residual jurisdiction to intervene in exceptional circumstances such as illegality, procedural irregularity, prejudgment of culpability, and extreme hardship; here the process was illegal ab initio and nothing valid could be remitted.

Reasoning

The doctrine of exhaustion articulated in Speaker of National Assembly v Karume and Geoffrey Muthinja Kabiru is subject to exceptional circumstances. The disciplinary process was marred by illegality from the start, the Chief Justice had pre-judged gross misconduct, and the respondent suffered extreme hardship through indefinite suspension with nil pay, rendering continuation an exercise in futility.

p. 4
04

The role of this Court as a first appellate court

Holding

A first appeal to the Court of Appeal is by way of retrial: the Court re-evaluates the evidence and draws its own conclusions, while making due allowance for not having seen or heard the witnesses, and departs from trial findings only where they are unsupported by evidence or based on wrong principles.

Reasoning

Relying on Selle & another v Associated Motor Boat Company Limited and Jabane v Olenja, the Court reiterated that it is not bound to accept trial court findings of fact but will depart only where the trial court failed to take account of particular circumstances or acted on wrong principles of law.

p. 7

Legal principles established

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  • Before the Chief Justice may suspend a judicial officer under paragraph 17(2) of the Third Schedule to the Judicial Service Act, dismissal proceedings under paragraph 25 must first be undertaken, including the laying of charges and any response before the Judicial Service Commission.
  • A judicial officer cannot be suspended without pay; there is no provision in the Judicial Service Act or Employment Act permitting withholding of salary during suspension, and penal provisions must be construed restrictively.
  • Only the Judicial Service Commission, not the Chief Justice, is empowered to determine the pay of a judicial officer on suspension.
  • Courts retain a residual jurisdiction to intervene in internal disciplinary processes in exceptional circumstances, such as illegality, procedural irregularity and extreme hardship, notwithstanding the doctrine of exhaustion of remedies.

Court orders

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  1. 1.The orders in the judgment of the trial court dated 30th August 2019 in Nairobi ELRC Petition No 100 of 2019 are upheld, save to the extent that they may have been modified or qualified by the findings made in this judgment
  2. 2.The appeal is dismissed with costs to the respondent
  3. 3.The Registrar of the court is directed to send a copy of the judgment for the attention of the Attorney General, in light of the identified amendments and regulations required to be made to, and under the Third Schedule to the Judicial Service Act
On appeal from
Employment and Labour Relations Court
Nairobi ELRC Petition No 100 of 2019
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Chief Justice and President of the Supreme Court of Kenya & another v Khaemba (Civil Appeal 522 of 2019) [2021] KECA 322 (KLR)", Case Analysis (2021). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/322/eng@2021-12-17

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