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ELRCPartially AllowedPetition No 100 of 2019· [2019] KEELRC 917 (KLR)

Khaemba v Chief Justice and President of the Supreme Court of Kenya & another (Petition 100 of 2019) [2019] KEELRC 917 (KLR)

Employment and Labour Relations Court of Kenya
30 August 2019
BOByram Ongaya
15,915 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~64 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled the Chief Justice unlawfully suspended a magistrate without pay, ordered his full reinstatement and back pay.

What this practically means

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Executive summary

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The petitioner, a Principal Magistrate deployed at Kiambu Law Courts, challenged his suspension by the Chief Justice by letter dated 13.06.2019 after he handled Kiambu Miscellaneous Criminal Application No. 222 of 2019 (Waititu v DPP) on 23.05.2019, a day he had reported himself unwell and his matters had been taken out. He sought declarations that the suspension letter and various statutory and policy provisions were unconstitutional, judicial review orders of certiorari, prohibition and mandamus, and damages. The Court first rejected the respondents' preliminary objection that the Attorney-General was a mandatory party, holding the respondents could not benefit from their own omission not to instruct the Attorney-General. On constitutionality, the Court held the Third Schedule to the Judicial Service Act enjoys the status of a parliamentary enactment; the delegation of suspension powers to the Chief Justice was valid, and paragraphs 15 and 17(3) were not unconstitutional, there being no provision prescribing suspension with nil pay. However, the suspension itself was held unlawful: it was premature, imposed before the Commission decided under paragraph 25(3) that disciplinary proceedings should continue; it imposed conditions not prescribed by regulations; and it withheld the mandatory alimentary allowance and pay. The Court found violations of Articles 41, 47(1) and 236. Punitive and aggravated damages were refused as the Chief Justice acted in good faith. The Court quashed the suspension by certiorari, granted prohibition, permanent injunction and mandamus reinstating the petitioner with full pay and benefits, and awarded costs to the petitioner.

Key legal issues

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01

Joinder of the Attorney-General for constitutional challenges to statutes

Holding

The preliminary objection fails; the petition is not defeated for non-joinder of the Attorney-General.

Reasoning

The respondents opted to appoint their own advocate rather than the Attorney-General and could not benefit from their own omission; rule 5(b) of the Mutunga Rules bars defeat for misjoinder; the Attorney-General is a mandatory member of the JSC and presumed aware of the petition; no provision bars the Court from interpreting the Constitution where constitutionality of a statute is questioned by parties before it.

p. 14
02

Constitutionality of paragraphs 15 and 17(3) of the Third Schedule to the Judicial Service Act

Holding

Not unconstitutional; the delegation of suspension powers to the Chief Justice is valid and no provision prescribes nil pay.

Reasoning

The Third Schedule enjoys the status of a parliamentary enactment; Parliament may delegate the suspension power to the Chief Justice as an administrative role; the safeguards require an alimentary allowance and prescribed conditions; nothing in the Schedule or Act prescribes suspension on nil pay, so the petitioner failed to show unconstitutionality.

p. 19
03

Lawfulness of the suspension of 13.06.2019

Holding

The suspension was unlawful and premature, imposed before the Commission decided proceedings should continue, and breached mandatory safeguards.

Reasoning

The suspension letter imposed conditions (nil pay, handover, monthly reporting) not prescribed by regulations as required by paragraph 17(4); no proceedings for dismissal had been taken as required by paragraph 17(2); the mandatory alimentary allowance was not provided; the indefinite suspension amounted to constructive termination.

p. 22
04

Violation of constitutional rights

Holding

Articles 41, 47(1) and 236 were infringed by the unlawful suspension.

Reasoning

Because the suspension was unlawful and imposed outside the statutory safeguards, the petitioner's right to fair labour practices, protection of public officers, and fair administrative action that is expeditious and procedurally fair were infringed.

p. 27
05

Merits of the grounds for suspension

Holding

The Court declined to decide the disciplinary case on its merits, making two observations on deficient operational procedures and judicial immunity.

Reasoning

It is the employer's role, not the Court's, to decide a disciplinary case; the Court observes there were no documented procedures for allocation of urgent files at Kiambu, and that judicial officers are protected under Article 160(5) for acts done in good faith in lawful performance of judicial functions.

p. 24

Legal principles established

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  • In the absence of a provision of law prescribing suspension without pay, a judicial officer or judiciary staff on suspension is entitled to full pay; suspension with nil pay as an interlocutory disciplinary measure is an unfair labour practice.
  • Disciplinary proceedings against a judicial officer are not 'taken' for purposes of suspension under paragraph 17(2) of the Third Schedule until the Commission has decided under paragraph 25(3) that the proceedings should continue; earlier suspension is premature.
  • The Employment Act, 2007 applies to judicial officers and other judiciary staff where no better or similar terms of service are prescribed.
  • A judicial officer is not liable for acts done in good faith in the lawful performance of a judicial function, including in administrative disciplinary proceedings.
  • Human resource functions of constitutional commissions must be governed by subsidiary legislation under the Statutory Instruments Act and cannot rest on administrative policy alone.

Court orders

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  1. 1.Declaration that the 1st respondent's letter dated 13.06.2019 was illegal, null and void ab initio for contravening Articles 41, 47(1) and 236 of the Constitution
  2. 2.Declaration that the respondents pay the petitioner all salaries, allowances and contractual and statutory benefits withheld throughout the suspension period, by 01.11.2019 failing interest at Court rates, and the petitioner to report for deployment by 09.09.2019
  3. 3.Declaration that the respondents infringed the petitioner's fundamental rights under Articles 41 and 47(1) of the Constitution
  4. 4.Judicial review order of certiorari quashing the decision of the 1st respondent contained in the letter dated 13.06.2019
  5. 5.Order of prohibition and permanent injunction restraining the respondents from implementing the decision in the letter of 13.06.2019 or taking adverse action against the petitioner pursuant to it
  6. 6.Order of judicial review of mandamus directing the respondents to reinstate the petitioner to his employment including salary and employment benefits
  7. 7.Petitioner to serve the judgment upon the Attorney-General within 7 days towards correcting the anomaly identified in paragraph 15 of the Third Schedule of the Judicial Service Act
  8. 8.Respondents to pay the petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 249(1)(2), 25(c), 28, 31, 41, 47(1), 48, 50, 73, 75, 156(4), (5), (7), 159(2), 160(5), 161(2)(a), 168(5), (6), 171(2), 172(1)(c), 232, 236
  • Judicial Service Act, No. 1 of 2011 (Cap. 185B)Sections 2, 13, 14, 19, 32(1)-(5), 45(1), 47(3), Third Schedule paragraphs 15, 16, 17, 18, 25, 28(2), 30
  • Employment Act, 2007Sections 3(5), 17, 18(6), 19, 41, 43, Part IV
  • Public Service Commission Act, 2017Section 71(3), (4), (5)
  • Magistrates' Courts Act, No. 26 of 2015Sections 11, 20
  • Fair Administrative Action Act, No. 4 of 2015(cited generally)
  • Statutory Instruments Act(cited generally)
  • Employment and Labour Relations Court Act, 2011Section 3
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013Rule 5(b)
  • Judicial Service Code of Conduct and EthicsRules 3 & 12
  • Judiciary Human Resources Policies and Procedures ManualClauses D.7.2 (xvii), D.7.5.2 (ii) & (iii)
  • Labour Relations Act(cited generally)

Cases cited (12)

  • Timothy Njoya & 17 Others v Attorney General & 4 Others
    [2013]eKLR
  • Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others
    (CCT27/95) [1995]
  • Alice Waithera Mwaura & 12 Others v Committee of Experts & 2 Others
    [2010]eKLR
  • Attorney General v Kituo Cha Sheria & 7 Others
    [2017]eKLR
  • Peterson Ndung'u & 5 Others v Kenya Power and Lighting Company Limited
    [2014]eKLR
  • Margaret Lorna Kariuki v Embu County Government
    [2015]eKLR
  • Mburugu Muguna Geoffrey v Attorney General
    Civil Case No. 3472 of 1994
  • Grace Gacheri Muriithi v Kenya Literature Bureau
    (2012) eKLR
  • Joseph Ndungu v Mastermind Tobacco (K) Ltd
    [2014]eKLR
  • Teachers Service Commission (TSC) v Kenya National Union of Teachers (KNUT) and Another
    [2019]eKLR
  • George Maina Kamau v The County Assembly of Murang'a and 2 Others
    [2016]eKLR
  • Geoffrey Mworia v Water Resources Management Authority and 2 Others
    [2015]eKLR
Jurisdiction invoked
Articles 41, 47 and 236 of the Constitution of Kenya, 2010; Employment and Labour Relations Court Act, 2011; Judicial Service Act, No. 1 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Khaemba v Chief Justice and President of the Supreme Court of Kenya & another (Petition 100 of 2019) [2019] KEELRC 917 (KLR)", Case Analysis (2019). Petition No 100 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/917/eng@2019-08-30

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