Muya v Judicial Service Commission & another (Petition 154 of 2019) [2019] KEELRC 722 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the JSC acted ultra vires in considering complaints addressed to the Chief Justice
The JSC did not act ultra vires; its action fell within the Commission acting on its own initiative under Article 168(2)
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.
Whether the petitioner's rights to fair hearing and fair administrative action were violated
No violation; the petitioner was given adequate time to respond and chose to proceed without the court file
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.
Whether errors in the JSC Report rendered the proceedings and Report unconstitutional
The admitted error (reference to a complaint against another judge) did not occasion prejudice or render the Report unconstitutional
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.
Whether the JSC is functus officio
Yes; having forwarded the petition to the President under Article 168(4) and a Tribunal having been constituted, the JSC has no further role
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).
Legal principles established
#- 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
#- 1.The petition is dismissed
- 2.Each party shall bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.