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ELRCPartially AllowedPetition (number not stated in judgment)· [2019] KEELRC 279 (KLR)

JRN v Judicial Service Commission (Petition 92 of 2019) [2019] KEELRC 279 (KLR)

Employment and Labour Relations Court
22 November 2019
RSRadido Stephen
3,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a magistrate's dismissal for running a bar was unfair, awarding him Kshs 3.8 million because no conflict of interest was proven.

What this practically means

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Executive summary

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The Petitioner, a Principal Magistrate, was found unsuitable by the Judges and Magistrates Vetting Board in December 2013, but on review in January 2015 the Board set aside that determination on jurisdictional grounds and referred pending complaints, including that he had run a bar in Busia in 2005/2006, to the Judicial Service Commission. The Chief Justice framed six charges in June 2017; after written responses, service of witness statements and an oral hearing before the Human Resource Committee, the Commission dismissed the Petitioner in March 2019 for grossly misconducting himself by running a bar, citing Article 172(1)(a)(iv) (a non-existent provision, later explained as a typographical error for Article 73(1)(a)(iv)) and Article 75 of the Constitution. The Petitioner challenged the JSC's jurisdiction, the fairness of the 19-month process, the constitutionality of Regulation 23 of the Third Schedule to the Judicial Service Act, and sought reinstatement. The Court held the disciplinary process was fair and the delay explained; that the Board's finding of suitability was jurisdictional, not meritorious, so the JSC could act on the referred complaint without double jeopardy; that the access-to-information and constitutionality claims were theoretical and unproved; and that although running a bar may have been a valid ground, no conflict of interest was demonstrated, so the dismissal was unfair. The Court declared the dismissal unfair, awarded compensation of Kshs 3,797,200/- (ten months' salary), and awarded the Petitioner costs. Reinstatement and the declarations on constitutionality and access to information were refused.

Key legal issues

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01

Fair hearing in the disciplinary process

Holding

The Petitioner was afforded a fair hearing; the 19-month duration was not inordinate delay given the explained causes

Reasoning

The Petitioner was notified of the charges, responded in writing, was served with witness statements and attended an oral hearing. The 19-month period was explained by the SRC cap on sittings, quorum deficits, other constitutional functions and witness illness, none of which the Petitioner rebutted. The Court departed from the Ochenja decision on these facts.

p. 3
02

Jurisdiction of the JSC over pre-effective-date complaints referred by the Vetting Board

Holding

The Board's review finding of suitability was jurisdictional, not meritorious; the JSC could properly take up the complaint

Reasoning

The Board set aside its unsuitability determination only because it lacked jurisdiction over pre-27 August 2010 conduct, effectively washing its hands of the complaint. Relying on the Supreme Court's Vetting Board decision, the JSC was entitled to act on the referred complaint; the double jeopardy objection also failed.

p. 4
03

Constitutionality of Regulation 23 of the Third Schedule to the Judicial Service Act

Holding

The challenge failed; the Petitioner did not demonstrate the inconsistency and access to information was not violated

Reasoning

The Petitioner made no requests for records during the disciplinary process and only requested documents after dismissal; the Respondent eventually furnished records after the Court's directions. The right to access information can be restricted by legislation, and the Petitioner did not articulate how the regulation offended the Constitution.

p. 4
04

Validity and fairness of the reason for dismissal

Holding

The dismissal may have been for valid reasons but was not fair; no conflict of interest was demonstrated

Reasoning

The Petitioner admitted running a bar, so the issue was whether that conduct was inconsistent with his oath and the Code of Conduct. The Respondent adduced no evidence of any inherent or apprehended conflict of interest, and lesser sanctions were available. Sections 43 and 45 of the Employment Act require both valid and fair reasons.

p. 5
05

Remedies

Holding

Compensation equivalent to 10 months' salary awarded instead of reinstatement

Reasoning

Considering the Petitioner's length of service of about 15 years, the Court assessed compensation of Kshs 3,797,200/- as adequate vindication of the legal injuries, and declined reinstatement.

p. 5

Legal principles established

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  • Inordinate delay in concluding disciplinary cases must be examined on a case-by-case basis and explained delay will not violate fair administrative action
  • A judicial commission of inquiry reference that is declined for lack of jurisdiction does not bar the rightful body from taking disciplinary action; double jeopardy does not arise
  • Under sections 43 and 45 of the Employment Act, 2007 the employer must prove not only a valid reason but a fair reason for dismissal
  • The running of a bar by a judicial officer is not per se misconduct; the employer must demonstrate an actual or apprehended conflict of interest, and dismissal may be for valid but unfair reasons

Court orders

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  1. 1.Declaration that the dismissal of the Petitioner was unfair
  2. 2.Compensation of Kshs 3,797,200/- (equivalent to 10 months' salary)
  3. 3.Petitioner to have costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(4), 10(2)(a), 24, 35, 47, 47(2), 73(1)(a)(iv), 75, 172(1)(a), 172(1)(c), 232(e) & (f)
  • Judicial Service Actsection 32; Paragraph 25(11), Part IV, Third Schedule; Regulation 23 of the Third Schedule
  • Employment Act, 2007sections 43 and 45
  • Fair Administrative Action Actsection 6
  • Access to Information Actsection 6
  • Judges and Magistrates Vetting Actsections 22(4) & (5)
  • Employment and Labour Relations Court (Procedure) Rules, 2016not specified

Cases cited (3)

  • Magistrates Vetting Board v Kenya Magistrates and Judges Association & Ors (2014) eKLR (the Vetting Board decision)
    (2014) eKLR
  • Judges and Magistrates Vetting Board & Attorney General v Kenya Magistrates & Judges Association (2014) eKLR
    (2014) eKLR
  • Daniel Mudanyi Ochenja v Judicial Service Commission (2019) eKLR
    (2019) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction); dispute concerns dismissal of a judicial officer under Article 172(1)(c) of the Constitution and the Judicial Service Act

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, "JRN v Judicial Service Commission (Petition 92 of 2019) [2019] KEELRC 279 (KLR)", Case Analysis (2019). Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/279/eng@2019-11-22

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