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ELRCAllowedPetition No 50 of 2018· [2019] KEELRC 861 (KLR)

Njora v Judicial Service Commission & another (Petition 50 of 2018) [2019] KEELRC 861 (KLR)

Employment and Labour Relations Court
20 September 2019
ANAbuodha J. N.
4,961 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 reinstated a Supreme Court Deputy Registrar, ruling her dismissal for insubordination was unfair, disproportionate and without valid reason.

What this practically means

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Executive summary

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The petitioner, a former Deputy Registrar of the Supreme Court, petitioned the Employment and Labour Relations Court challenging her interdiction on 15th June 2016 and dismissal on 26th January 2018 by the Judicial Service Commission. The charge was gross misconduct: allegedly fixing Supreme Court Applications Nos. 11 and 12 of 2016 (arising from the Rawal and Tunoi retirement-age litigation) for hearing without consultation with the retired Chief Justice and in disregard of his directions. The respondents raised a preliminary objection on exhaustion of internal mechanisms and contended the court could not retry the disciplinary case, only review the process under Articles 41 and 47. The court applied sections 43 and 47(5) of the Employment Act and the reasonable employer test. It found that the duty judge, Lady Justice Njoki Ndungu, herself confirmed she was the duty judge who fixed the hearing dates; that the petitioner did all a reasonable Deputy Registrar could do by relaying the Chief Justice's directions to the Judge (earning a reprimand for interrupting proceedings); and that the email exchange between the retired Chief Justice and Justice Ndungu showed the issue was beyond the petitioner's administrative control. The court observed the CJ's directions smacked of interference with decisional independence. Holding the dismissal disproportionate, unreasonable and without valid justification, the court declared the disciplinary proceedings and termination unfair, null and void, ordered reinstatement without loss of benefits, and awarded the petitioner costs.

Key legal issues

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01

Whether the petitioner's dismissal for insubordination was justified

Holding

No - the dismissal was disproportionate, unreasonable and without valid justification

Reasoning

The petitioner was charged with failing to obey the Chief Justice's directions by facilitating the hearing of Supreme Court Applications 11 and 12 of 2016 by Lady Justice Ndungu. The court found that apart from relaying the directions to the duty Judge - earning only a reprimand - there was nothing more the petitioner could have done to stop the Judge from entertaining the applications, an email exchange showing the issue was beyond her administrative control.

p. 9
02

Burden of proof in unfair termination

Holding

Under section 47(5) of the Employment Act the employee must prove unfair termination; under section 43(1) the employer bears the burden of proving the reason for termination

Reasoning

The court framed the evidentiary thresholds before considering relief, noting the dismissal letter's stated reason (insubordination against the Chief Justice's directions) had to be genuinely held and substantiated by the employer, and the court found it was not.

p. 7

Legal principles established

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  • The test for justification of dismissal is that of the reasonable employer - whether dismissal was the most effective or proportionate measure.
  • Where an employee's conduct was beyond her administrative control and she did all a reasonable officer could do, dismissal for insubordination is disproportionate and unjustified.

Court orders

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  1. 1.A declaration that the disciplinary proceedings involving the petitioner and her eventual termination from service were unfair, lacked valid reason, and were null and void
  2. 2.Reinstatement of the petitioner back to judicial service without loss of benefits
  3. 3.Costs of the petition awarded to the petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41 and 47
  • Employment Actsections 43(1), 43(2), 47(5)
  • Judicial Service ActThird Schedule, Part IV, sections 16, 25(1), 25(3), 25(4), 25(5), 25(7), 25(9), 25(11)
  • Judicial Service Commission ActThird Schedule, regulation 25(4), 25(5)
  • Supreme Court Actsections 9, 24
  • Supreme Court (Amendment) Rules 2016rule 4(3)

Cases cited (4)

  • Supreme Court Application No. 11/2016 - Justice Kalpana Rawal -Vs- JSC & Others
  • Supreme Court Application No. 12/2016 - Justice Philip Tunoi & Another -Vs- JSC & Others
  • Nairobi Civil Appeal No. 1/2016 (Hon. Lady Justice (Retired) Kalpana Rawal)
  • Nairobi Civil Appeal No. 6/2016 (Hon. Justice (Retired) Philip Tunoi)
Jurisdiction invoked
Constitutional petition enforcing Articles 41 and 47 of the Constitution; Employment Act claims for unfair termination

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, "Njora v Judicial Service Commission & another (Petition 50 of 2018) [2019] KEELRC 861 (KLR)", Case Analysis (2019). Petition No 50 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/861/eng@2019-09-20

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