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ELRCDismissedPetition (Amended 24th June 2019)· [2019] KEELRC 722 (KLR)

Muya v Judicial Service Commission & another (Petition 154 of 2019) [2019] KEELRC 722 (KLR)

High Court of Kenya
27 September 2019
5,883 words in judgment
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The bottom line

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Kenya's High Court dismissed Justice Muya's challenge to the JSC's disciplinary process, clearing the way for the Tribunal handling his removal case to proceed.

What this practically means

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Executive summary

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A sitting High Court Judge stationed at Bomet petitioned the High Court seeking to invalidate the disciplinary process that led to his suspension. Two complaints by bank-related litigants, lodged through advocates and addressed to the Chief Justice, concerned his five-month delay in delivering reasons for rulings. The Judicial Service Commission constituted a committee, heard the complaints, and by a Report of 8th May 2019 found the complaints disclosed grounds of removal and recommended that the petition be sent to the President. The President appointed a Tribunal by Gazette Notice No. 4851 of 4th June 2019 and suspended the petitioner, whose remuneration was adjusted. The petitioner sought declarations that the JSC proceedings, Report, recommendation, Tribunal appointment and Gazette Notice were null and void, that his suspension be annulled and his remuneration restored. The court framed five issues: ultra vires action, violation of rights, unconstitutionality of the proceedings and Report, functus officio, and entitlement to reliefs. It held the complaints addressed to the Chief Justice fell within the JSC acting on its own initiative; that the petitioner's right to fair hearing was not violated as he chose to proceed without the court file; that the admitted error in the Report occasioned no prejudice; and that the JSC, having forwarded the petition to the President, was functus officio, with any remedy lying in an appeal to the Supreme Court against the Tribunal's recommendations. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the JSC acted ultra vires in considering complaints addressed to the Chief Justice

Holding

The JSC did not act ultra vires; its action fell within the Commission acting on its own initiative under Article 168(2)

Reasoning

The complaints, though addressed to the Chief Justice, requested administrative action. The Chief Justice, as Chairperson of the JSC, took administrative action by requiring the petitioner to respond before tabling the complaints before the Commission. The court held this fell within the JSC acting on its own initiative following the complaints and the petitioner's responses, and was therefore intra vires the Constitution.

p. 7
02

Whether the petitioner's rights to fair hearing and fair administrative action were violated

Holding

No violation; the petitioner was given adequate time to respond and chose to proceed without the court file

Reasoning

The record showed the issue of the missing court file was raised and the petitioner, when asked, confirmed he was ready to proceed without it. He had also had the benefit of the file when responding to the Chief Justice's letter. The court found no proof of denial of a fair hearing.

p. 7
03

Whether errors in the JSC Report rendered the proceedings and Report unconstitutional

Holding

The admitted error (reference to a complaint against another judge) did not occasion prejudice or render the Report unconstitutional

Reasoning

The 1st Respondent admitted the error and attributed it to pressure of work. The court found the petitioner was referred to the complaints against him, all communication concerned those complaints, and neither the Constitution nor the Judicial Service Act prescribes the manner in which the report should be written. The petitioner did not demonstrate how the errors affected the Report's credibility.

p. 8
04

Whether the JSC is functus officio

Holding

Yes; having forwarded the petition to the President under Article 168(4) and a Tribunal having been constituted, the JSC has no further role

Reasoning

It was not contested that the JSC submitted the petition to the President in compliance with Article 168(4) and that a Tribunal was appointed. The court agreed the JSC had finalised its mandate, the matter was now in the hands of the Tribunal, and any appeal on the Tribunal's recommendations lies to the Supreme Court under Article 168(8).

p. 8

Legal principles established

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  • The role of the JSC under Article 168 is limited to initiating removal of a judge and, if satisfied the petition discloses a ground for removal, sending the petition to the President; it is not required to make definitive findings.
  • Complaints addressed to the Chief Justice may found JSC action on its own initiative under Article 168(2).
  • Once the JSC has forwarded a petition to the President and a Tribunal is constituted, the JSC is functus officio and the Tribunal's mandate should be allowed to run its course, with appeal lying to the Supreme Court.

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1) and (4), 3(1), 10, 20, 22, 23, 47, 50, 168(1)-(10), 171, 172, 259
  • Judicial Service ActSection 13(3) Part III
  • Civil Procedure Act / Civil Procedure Rules, 2010Order 21 Rule 1

Cases cited (4)

  • Onyango Oloo Vs Attorney General
    (1986-1989) EA
  • Judicial Service Commission Vs Mbalu Mutava & Another
    (2015) eKLR
  • Nancy Makoha Baraza Vs Judicial Service Commission & 9 Others
    (2012) eKLR
  • Rees Vs Crane
    (1994) ALL ER 833
Jurisdiction invoked
Articles 2(1) and (4), 3(1), 10, 20, 22, 23, 47, 50, 168 and 259 of the Constitution of Kenya, 2010

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, "Muya v Judicial Service Commission & another (Petition 154 of 2019) [2019] KEELRC 722 (KLR)", Case Analysis (2019). Petition (Amended 24th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/722/eng@2019-09-27

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