Shollei v Judicial Service Commission; Commission on Administrative Justice (Amicus Curiae) (Petition 39 of 2013) [2014] KEELRC 764 (KLR)
The bottom line
#Kenya's Industrial Court ruled Gladys Shollei's removal as Chief Registrar was unfair and quashed it, awarding her compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the JSC had jurisdiction to discipline the Chief Registrar of the Judiciary
JSC had jurisdiction under Article 172(1)(c) of the Constitution read with Section 12(1) of the Judicial Service Act; the term 'registrar' includes the CRJ.
The Amicus Curiae and the Respondent argued that no other constitutional provision governs removal of the CRJ, and it would be absurd to hold that the CRJ is shielded from discipline. The Court agreed, holding that 'registrar' in Article 172(1)(c) covers the Chief Registrar, notwithstanding the petitioner's argument that accountability on financial matters lay with the National Assembly, Auditor-General and procurement oversight bodies.
Whether the charges against the Petitioner were properly framed
The vast majority of the 87 allegations were bad in law for vagueness, duplicity and splitting of charges; counts did not disclose offences or the statutory provisions contravened.
Although the criminal procedure standards need not be strictly imposed, quasi-criminal disciplinary proceedings must avoid glaring deviations. Applying Dande v Republic, counts charging alternative offences are incurably bad. Count 10 omitted a word fatal to its substance, count 23 exemplified serious splitting, and many counts failed to disclose any offence or legal provision breached, suffocating the Petitioner's ability to defend herself.
Whether the Petitioner was given a fair and impartial hearing free of bias
No - reasonable apprehension of bias against the CJ and named Commissioners was well founded; they ought to have stepped aside and a properly constituted panel convened.
Applying the objective test of reasonable apprehension of bias from Pinochet, Anyang' Nyong'o and the Supreme Court in Jasbir Singh Rai, the Court found the allegations against the CJ (in light of the 'war council' emails, on which he offered no affidavit) and Commissioner Ahmednasir Abdullahi were of such gravity that a fair-minded informed observer would apprehend bias. None of the accused Commissioners filed personal affidavits denying the allegations.
Whether the JSC complied with Section 32 and Regulation 25 of the JSC Act
The JSC grossly and fatally deviated from mandatory procedure - the entire Commission sat as the tribunal, the CJ chaired it contrary to the express prohibition, no committee reported findings, and no verdict on individual charges was recorded.
Section 32 and Regulation 25 mandate a committee or panel of at least three persons, excluding the CJ, to investigate and report before the Commission decides punishment. The JSC conflated itself with the panel, refused the Petitioner's witnesses and documents, denied adequate time, and recorded no verdict on the 87 allegations, only a blanket removal. The proceedings were ultra vires and a nullity.
Whether the Petitioner admitted any of the 87 allegations
No - the Court found no unequivocal admission or plea of guilty to any allegation; the JSC's claim that 33 were admitted was untenable.
Reading the interim and final responses and the Respondent's matrix, wherever the Petitioner confirmed an action she gave a justification, which cannot be an admission. Applying Adan v Republic guidelines, the ingredients of alleged offences were never explained to her and no plea was properly taken. The JSC should have proved the offences on a balance of probabilities, which it did not do.
What remedies flow from the violations
Declarations of violation, certiorari quashing the removal letter and proceedings, and compensation with an inquiry into quantum.
Counsel did not press reinstatement; the Court, relying on the efficacy of certiorari in the Gathenji case and the Privy Council's guidance in Ramawop on vindicating constitutional rights, held the Petitioner entitled to redress under Article 23(3), Section 12 of the Industrial Court Act and Section 49 of the Employment Act. Declarations alone could not vindicate rights so gravely affected.
Legal principles established
#- The term 'registrar' under Article 172(1)(c) of the Constitution includes the Chief Registrar of the Judiciary, and the JSC has jurisdiction to discipline the CRJ under Article 172(1)(c) as read with Section 12(1) of the Judicial Service Act.
- A disciplinary process against the Chief Registrar must comply with the mandatory procedure in Section 32 of the JSC Act and Regulation 25 of the Third Schedule: a committee or panel of at least three persons, excluding the Chief Justice, must investigate and report before the Commission decides on punishment; the entire Commission may not constitute itself into the panel.
- The test for apparent bias is objective - whether a fair-minded, reasonable and informed member of the public would apprehend that the tribunal would not act impartially; a member against whom credible allegations of personal interest are made ought to step aside.
- Charges in quasi-criminal disciplinary proceedings must not be vague, duplicitous or split; a count charging two or more offences in the alternative is incurably bad.
- An equivocal response cannot be treated as a plea of guilty; where the accused does not unequivocally admit the essential ingredients of a charge, a proper hearing on a balance of probabilities is required.
Court orders
#- 1.An order of certiorari issued to quash the letter of removal dated 18th October, 2013
- 2.An order of certiorari issued to quash the proceedings of 18th October, 2013
- 3.A declaration that the Respondent violated the Petitioner's rights under Articles 27(1), 35(1)(b), 47(1)&(2), 50(1)&(2) and 236(b)
- 4.A declaration that the Petitioner is entitled to compensation for the unlawful and unfair loss of employment and for violation of her constitutional rights, with an inquiry into quantum to be gone into
- 5.The Petitioner to be paid the costs of the suit
- Jurisdiction invoked
- Article 162(2) of the Constitution as read with Section 12 of the Industrial Court Act, 2011 (transferred by Mumbi Ngugi J from the High Court Constitutional Division)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shollei v Judicial Service Commission; Commission on Administrative Justice (Amicus Curiae) (Petition 39 of 2013) [2014] KEELRC 764 (KLR)", Case Analysis (2014). Petition dated 31st October 2013 (filed 1st November 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/764/eng@2014-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.