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Court of AppealPartially AllowedCivil Appeal E403 of 2021· [2024] KECA 1924 (KLR)

Judicial Service Commission v Eric Michael Karanja Kamande

Court of Appeal
20 December 2024
6,879 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld the dismissal of a Judicial Service Commission officer who secretly met a bidder during a tender evaluation.

What this practically means

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Executive summary

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The respondent, a principal administrative officer in the Judicial Service Commission's human resource directorate, served on a tender evaluation committee for a Judiciary security tender. After a dissatisfied bidder successfully sought review before the Public Procurement Administrative Review Board, which recommended investigation of the committee members, the respondent was issued a show cause letter, charged with gross misconduct for meeting the bidder during the tender process and failing to disclose the meeting, interdicted, and ultimately dismissed in March 2019. The ELRC (Rika, J.) allowed his constitutional petition, holding that the Judicial Service Act's third schedule mandated a separate investigation before a disciplinary hearing, that the disciplinary process was unfair for failing to summon the crucial complainant witness, and ordered reinstatement. The Court of Appeal allowed the JSC's appeal. It held the petition was properly pleaded under the Anarita Karimi Njeru threshold, but respectfully disagreed with the trial judge's interpretation of rule 25 of the third schedule: the provisions constitute a single disciplinary process ('proceedings for dismissal'), and the committee appointed to investigate under rule 25(3) is the same body that conducts the hearing under rule 25(4). Rule 16 gives the Chief Justice discretion, not a mandate, to hold a preliminary inquiry. The disciplinary process complied with fair hearing standards; the complainant was summoned twice and failed to attend, and the committee, not being a court, lacked coercive powers to compel attendance. The respondent's undisclosed meeting with a bidder during evaluation created a perception of bias, applying Metropolitan Properties v Lannon, so the termination was lawful and fair. The ELRC judgment was set aside, the petition dismissed with costs, and the respondent's cross-appeal for Kshs. 2,000,000 in damages was dismissed with costs.

Key legal issues

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01

Whether the constitutional petition met the pleading threshold

Holding

The petition met the Anarita Karimi Njeru threshold as restated in Mumo Matemu; the respondent properly lodged his claim as a constitutional petition.

Reasoning

The petition cited Article 47 and alleged the appellant failed to afford an opportunity to cross-examine the star witness, amounting to an infraction of fair administrative action. Precision demands neither formulaic prescription of facts nor formalistic utterance of constitutional provisions; the provision cited and the manner of breach were sufficiently identified.

02

Whether rule 25 of the third schedule required a separate investigation before disciplinary hearing

Holding

The Court respectfully disagreed with the ELRC judge: rule 25 constitutes proceedings for dismissal, disciplinary in nature; the investigating committee under rule 25(3) is the same committee that conducts the disciplinary hearing under rule 25(4), and investigations are to establish whether charges are legitimate, which requires a hearing.

Reasoning

The heading under rule 25 states the provisions are 'proceedings for dismissal'. There are no transitionary clauses indicating the committee under rule 25(3) is purely investigative; rule 25(4) places a subsequent disciplinary role on the same committee. The word 'investigations' does not mean the committee can only investigate and down its tools. The chronology shows the matter proceeds to a hearing before the same panel in the presence of the employee.

p. 8
03

Whether the disciplinary process met constitutional standards of fair hearing

Holding

The process complied with the Constitution, the Employment Act, the Judicial Service Act, the Fair Administrative Actions Act and the appellant's human resource manual; the respondent was afforded a fair hearing.

Reasoning

The respondent was served with a show cause letter and responded; he was given a chance to appear before the disciplinary committee and defend himself; he cross-examined the other witnesses to his satisfaction. The complainant was given two opportunities to attend and failed to honour summons; the committee was entitled to dispense with his attendance given the delay. The committee lacks coercive powers to compel witnesses.

04

Whether the reasons for termination were valid

Holding

The findings of the committee leading to termination were lawful and fair; meeting a bidder during the evaluation process without disclosure gave rise to a perception of bias.

Reasoning

The respondent did not deny meeting the bidder. Applying Lord Denning's principle in Metropolitan Properties Co (F G C) Ltd v Lannon, the court looks at the impression given to right-minded persons, not the actual state of mind of the tribunal member. Justice must be rooted in confidence; the undisclosed meeting with a tenderer during evaluation created a real likelihood of bias.

p. 11
05

Distinguishability of the Khaemba decision

Holding

Khaemba was distinguishable: that case involved suspension for gross misconduct in entertaining a matter without jurisdiction under rule 16 on public interest grounds, whereas here the misconduct was meeting a bidder during an ongoing tender process.

Reasoning

In Khaemba the respondent was interdicted under rule 16 for gross misconduct in handling a matter he lacked jurisdiction over. Here the misconduct only came to light when the tender was challenged before the Board, whose recommendation triggered the disciplinary chain. The respondent was interdicted and taken through a process that went to full hearing.

p. 7

Legal principles established

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  • Where a member of a tender evaluation committee meets a tenderer during the evaluation process, a perception of bias arises regardless of the purpose of the meeting, particularly where the meeting is not disclosed to co-committee members.
  • Rule 16 of the third schedule to the Judicial Service Act gives the Chief Justice wide discretionary powers to decide whether an inquiry ought to be done prior to a disciplinary hearing; the rule does not mandatorily require the inquiry to be conducted first.
  • Rule 25 of the third schedule to the Judicial Service Act constitutes a single disciplinary process ('proceedings for dismissal'); the committee or panel appointed under rule 25(3) to investigate is not confined to investigation but proceeds to conduct the disciplinary hearing under rule 25(4).
  • A disciplinary committee under the Judicial Service Act is not a court or a constitutionally established investigative agency and does not possess powers not donated to it, such as coercive powers to compel witness attendance.
  • A party who fails to raise an objection to procedure at the earliest opportunity during proceedings cannot later raise it as an afterthought.

Court orders

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  1. 1.Appeal allowed to the extent that the judgment of the ELRC is set aside
  2. 2.Substituted order that the respondent's petition amended on 19th October 2020 is dismissed with costs to the appellant
  3. 3.Respondent's cross-appeal dismissed with costs
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Petition No. 50 of 2020
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court (appeal by way of retrial); no specific constitutional provision invoked for the appeal itself

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Judicial Service Commission v Eric Michael Karanja Kamande", Case Analysis (2024). Civil Appeal E403 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1924/eng@2024-12-20

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