Judicial Service Commission v Ndururi (Civil Appeal 650 of 2019) [2021] KECA 365 (KLR)
The bottom line
#Kenya's Court of Appeal ordered a dismissed magistrate reinstated, ruling his employer failed to prove misconduct from mere allegations about a bar he ran.
What this practically means
#Executive summary
#Key legal issues
#Whether running a bar amounted to impropriety or appearance of impropriety warranting dismissal
The dismissal was unfair and unlawful; the appellant failed to prove impropriety, appearance of impropriety or conflict of interest, and the 2020 Code of Conduct could not apply retroactively to 2006 conduct.
Applying the burden-of-proof rule under section 107 of the Evidence Act, the court held the appellant had to prove the running of the bar undermined the respondent's judicial office. The bar was a 'Public Service bar' patronised exclusively by senior civil servants, not open to litigants or the public. No evidence showed the respondent served litigants or compromised the dignity of his office, and the Code of Conduct and Ethics 2020 came into force some fourteen years after the alleged misconduct and could not be applied retroactively.
Whether the Judicial Service Commission had jurisdiction over pre-2010 conduct referred by the Vetting Board
The JSC had jurisdiction because the Board's mandate expired before it determined the complaint on merit; the JSC could deal with disciplinary issues left hanging and was not confined to post-2010 complaints.
The court noted the Board's review decision did not clear the respondent of the bar-running issue; the Board referred the matter to the JSC citing lack of jurisdiction. Since the complaint was never determined on merit, the JSC's disciplinary mandate under article 172(1)(c) of the Constitution and the Judicial Service Act applied. The court rejected the argument that this amounted to double jeopardy or retrospective application of the law.
Whether the learned judge erred in failing to grant reinstatement
The judge erred; having found no impropriety and an unfair dismissal, he ought to have considered reinstatement or given reasons for not granting it, and the cross-appeal succeeded on this ground with reinstatement substituted for compensation.
A court must give reasons for its decisions. The judge did not address the prayer for reinstatement nor give reasons for withholding it. Applying section 49(4) of the Employment Act, the court found the respondent did not contribute to his termination, had served about 15 years, the relationship was not strained, the three-year limit under section 12(3) of the ELRC Act had not lapsed, and reinstatement would cause no hardship to the employer, amounting to exceptional circumstances warranting reinstatement.
Whether regulation 23 of the 3rd Schedule of the Judicial Service Act is unconstitutional and whether damages lay for constitutional violations
The cross-appeal on this ground failed; the respondent did not prove unconstitutionality and did not join the necessary parties.
For a prayer declaring a statutory provision unconstitutional to succeed, the respondent ought to have joined the Attorney General and Parliament as parties. Further, beyond mere allegation, the respondent did not prove the alleged unconstitutionality to the satisfaction of the court. Nor was compensation for breach of constitutional rights established.
Legal principles established
#- The burden lay on the employer to prove that an employee's conduct amounted to impropriety or an appearance of impropriety; a mere allegation is insufficient, and a Code of Conduct cannot be applied retroactively to conduct predating its commencement.
- The Judicial Service Commission had jurisdiction to deal with disciplinary matters left hanging by the Vetting of Judges and Magistrates Board when the Board's mandate expired, and was not confined to complaints arising after the 2010 Constitution.
- Where a court finds a dismissal unfair, it must consider the statutory parameters for reinstatement under section 49(4) of the Employment Act and give reasons if it declines to order reinstatement.
Court orders
#- 1.The appeal by the Judicial Service Commission is dismissed in its entirety.
- 2.The cross-appeal succeeds in part.
- 3.The order of compensation of 10 months' salary granted by the Employment and Labour Relations Court is set aside and substituted with an order that the respondent be reinstated to his employment with immediate effect to the office of Principal Magistrate without loss of back pay salary and/or benefits.
- 4.Costs of the appeal and cross appeal are awarded to the respondent in the appeal and appellant in the cross appeal.
- On appeal from
- Employment and Labour Relations Court, Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under its rules (rule 29(1) of the Court of Appeal Rules referred to); from the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission v Ndururi (Civil Appeal 650 of 2019) [2021] KECA 365 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/365/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.