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ELRCPartially AllowedPetition No. 267 of 2009· [2014] KEELRC 726 (KLR)

Gilbert Mwangi Njuguna v Attorney General [2014] KEELRC 726 (KLR)

High Court of Kenya
28 January 2014
MNMathews N. Nduma
5,461 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled the Judicial Service Commission illegally retired a magistrate without a fair hearing, awarding reinstatement, back pay and Kshs.2 million.

What this practically means

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Executive summary

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The Petitioner, an advocate and judicial officer serving as Acting Senior Principal Magistrate at Chuka, challenged his interdiction on half pay on 27th October 2006 and his retirement in public interest on 23rd June 2008 by the Judicial Service Commission, contending violations of Sections 71, 73, 74 and 77(9) of the repealed Constitution and of Regulations 14, 17, 26 and 28 of the JSC Regulations. He sought declarations of nullity, reinstatement, pension, salary arrears, exemplary and general damages and costs. The Respondent maintained that the retirement followed gross misconduct, was preceded by a notice to show cause and a written defence, and that no constitutional rights were breached. The court held that the right to a fair hearing under Section 77(9) was grossly violated: the JSC relied wholly on NSIS and Permanent Secretary reports which it never availed to the Petitioner, omitted the mandatory steps of Regulation 26, and hid under Regulation 28 to retire him without an oral hearing before a tribunal. The claims of violation of Sections 71, 73 and 74 failed, the interdiction conditions not amounting to servitude or inhuman treatment. The termination was also held unlawful and unfair under Section 45 of the Employment Act, 2007 for want of a substantiated fair reason. The court declared the interdiction and retirement null and void, awarded arrear salary and allowances for the interdiction period, general damages of Kshs.2 million, reinstatement at a level not lower than Senior Principal Magistrate without loss of accrued pension, and costs.

Key legal issues

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01

Violation of the right to a fair hearing under Section 77(9) of the repealed Constitution

Holding

The JSC grossly violated the Petitioner's right to a fair hearing by retiring him in public interest under Regulation 28 without according him an oral hearing before a tribunal, without availing the NSIS reports relied upon, and without following the mandatory procedural steps of Regulations 26 and 28

Reasoning

The JSC elected to hide under Regulation 28 rather than prefer charges under Regulation 26, relying wholly on reports from the Executive (NSIS and the Permanent Secretary) without availing them to the Petitioner or giving him an opportunity to appear before any committee. The regulations required notification of complaints, supply of detrimental reports, and a hearing before a sub-committee with opportunity to cross-examine witnesses. None of these steps were followed, violating Section 77(9).

p. 7
02

Whether the interdiction conditions amounted to servitude and forced labour under Section 73

Holding

The interdiction on half pay and reporting requirements did not amount to servitude or forced labour; the claim under Sections 71, 73 and 74 was not proved

Reasoning

The burden lay on the Petitioner to prove treatment so gross as to amount to deprivation of life, cruelty, servitude or forced labour. The court found the interdiction conditions were consistent with the JSC Regulations (Regulations 16 and 17) which were followed, and did not constitute servitude or inhuman treatment.

p. 10
03

Unlawful and unfair termination under the Employment Act, 2007

Holding

The failure to accord a fair hearing resulted in an unlawful and unfair termination contrary to Section 45 of the Employment Act, 2007, with no evidence of a fair reason for the retirement in public interest

Reasoning

The cause of action arose after the enactment of the Employment Act 2007. Under Section 47(5), the Respondent placed no evidence before the court, save bare and unsupported allegations in the Registrar's Replying Affidavit, to justify the retirement. The Petitioner's evidence of promotions, good supervisory recommendations and medical records rebutted the allegations.

p. 10

Legal principles established

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  • Where a retirement in public interest is contemplated under Regulation 28 of the JSC Regulations, the officer must be notified in writing of the complaints, supplied with the substance of detrimental reports, given an opportunity to show cause, and afforded a fair hearing including appearance before a tribunal; failure renders the decision null and void
  • A person alleging contravention of constitutional rights must plead with particularity the section allegedly contravened and the manner of contravention (Anarita Karimi Njeru principle)
  • Statutory powers must be exercised reasonably and not arbitrarily, capriciously or in bad faith

Court orders

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  1. 1.The purported interdiction of the Petitioner from the Judicial Service on 27th October, 2006 is illegal and null and void
  2. 2.The purported retirement in public interest of the Petitioner from the judicial service on 23rd June, 2008 is illegal and null and void
  3. 3.The Petitioner be paid the arrear salary including allowances due to him from 27th October, 2006 to 23rd June, 2008
  4. 4.The Petitioner be paid general damages for contravention of his right under Section 77(9) of the Constitution in the sum of Kshs.2million
  5. 5.The Judicial Service Commission do re-engage the Petitioner at a level not lower than Senior Principal Magistrate with effect from the date of judgment without loss of accrued pension in respect of past service
  6. 6.The Respondent to pay the Petitioner costs of the suit

Authorities

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Legislation

  • Constitution of Kenya (repealed)Sections 68, 69, 71, 73, 74, 77(1),(2),(9), 84(2)
  • Judicial Service Commission Act (Cap 185)Regulations 14, 16(1), 17(2), 17(5), 26(1)-(5), 27, 28(1),(2)
  • Employment Act, 2007Sections 45, 47(5)

Cases cited (7)

  • Anarita Karimi Njeru v Rep (No.1)
    (1979) 1 KLR 154
  • Benjamin Wachira Ndiithi v Attorney General
    Nairobi H.C. Misc. Application No. 279 of 2008
  • Joyce Manyasi v Evan Gicheru, Charles K. Njai, the Judicial Service Commission and the Honourable Attorney General
    Nairobi High Court Miscellaneous Application No. 920 of 2005
  • Republic v Commissioner of Co-operatives
    (1998) 1 EA 245
  • Winrose Gathigia Mbuthia v Kenyatta University
    H.C. Petition No. 1029 of 2007
  • Attorney General of Trinidad and Tobago v Ramawop
    Appeal No. 13 of 2004
  • Angela Innis v A.G. of St. Christopher and Nevis
    Appeal No. 29 of 2007
Jurisdiction invoked
Section 84(2) of the repealed Constitution of Kenya (enforcement of Bill of Rights provisions under sections 70-83)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Gilbert Mwangi Njuguna v Attorney General [2014] KEELRC 726 (KLR)", Case Analysis (2014). Petition No. 267 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/726/eng@2014-01-28

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