Republic v Judicial Service Commission & 2 others; Githinji (Exparte) (Judicial Review Application 8 of 2019) [2019] KEELRC 1286 (KLR)
The bottom line
#Kenya's Employment Court quashed a judge's early retirement, confirming that birth certificates are conclusive proof of age and administrative circulars cannot override the law.
What this practically means
#Executive summary
#Key legal issues
#Whether judicial review may extend to merits review of administrative action
Merit review is permissible where illegality or unreasonableness in substance is alleged; the application does not fail merely because it attacks the merits of the retirement decision
Relying on Suchan Investment and its own earlier decision in George Maina Kamau Kamau, the court held that Article 47 and the Fair Administrative Action Act introduced proportionality and reasonableness into judicial review, implicitly shifting it to include aspects of merit review. Where relevant considerations were allegedly ignored, assessment of facts is necessary, though the court cannot substitute its own decision for that of the administrator.
Whether the Government date-of-birth circulars applied to the applicant
The circulars did not apply to the applicant, who served in the Judiciary and was not a civil servant, and were in any event ultra vires the Births and Deaths Registration Act and Evidence Act
The circular of 15.11.1982 applied to civil servants in ministries and departments of the Executive; the applicant served in the Judiciary, a separate Arm of Government. Further, the circular imposed a procedural step (routing late birth registration through Permanent Secretaries) never contemplated by the Births and Deaths Registration Act, rendering it ultra vires and unlawful to demand compliance with it.
Whether the applicant failed to notify the respondents of his date of birth 30.12.1949
The applicant had notified the date through the on-line database, the 2011 vetting questionnaire and annual declarations, and the respondents never sought clarification
The declared date was not inconsistent with the year 1949 initially declared. The Judiciary's on-line data base, the Judges and Magistrates Vetting Board questionnaire and the declarations under the Public Officer Ethics Act all bore the date 30.12.1949, none of which was disputed. The respondents never invoked section 28(1) of the Public Officer Ethics Act to seek clarification, and could not shift their statutory obligation onto the applicant.
Whether the imposed retirement date of 01.07.2019 was reasonable and lawful
The date of birth was 30.12.1949 and the applicant attains 70 years on 30.12.2019; imposing 01.07.2019 was unreasonable and illegitimate
Applying Article 167(1) on retirement at 70 and Article 259(5)(c) on computation of time, together with the presumptions under section 83 of the Evidence Act and section 26(4) of the Births and Deaths Registration Act, the court found the birth certificate conclusive. The respondents gave no lawful reasons under Article 47(1) and (2) for the imposed date.
Whether the retirement procedure breached natural justice
The retirement decision was made without due process; the dispute over retirement date fell for review and recommendation by the Judicial Service Commission under Article 172(1)(b)
Article 236(b) protects public officers from removal or adverse disciplinary action without due process. Retirement age is a term and condition of service within the JSC's Article 172(1)(b) mandate. No evidence showed the JSC reviewed the applicant's dispute or made recommendations, nor that he was heard, breaching Article 47, section 4 of the Fair Administrative Action Act and natural justice.
Legal principles established
#- Under Article 47 as read with the Fair Administrative Action Act, judicial review extends to merit review to determine reasonableness or legality of administrative action
- A birth certificate issued under the Births and Deaths Registration Act is presumed genuine and conclusive evidence of the dates and facts it contains under section 26(4) of that Act and section 83(1) of the Evidence Act
- Administrative policy circulars cannot override or add procedural requirements inconsistent with the provisions of a statute; such circulars are ultra vires and of no effect
- The circulars governing civil servants' date-of-birth records did not apply to a judge of the Judiciary, who is not a civil servant
- A judge's retirement age is a term and condition of service which the Judicial Service Commission must review and make recommendations on under Article 172(1)(b) when disputed, with due process before adverse decisions
- Where a public officer's date of birth as notified is accepted without dispute, the authority cannot shift its statutory obligation to seek clarification onto the officer
Court orders
#- 1.Order of certiorari issued to quash the decision of the 1st and 2nd respondents to retire the applicant as communicated in the retirement notices dated 30.10.2018 and 28.01.2019 (Ref. CRJ 3/1)
- 2.Order of mandamus issued compelling the 1st respondent (Chief Registrar of the Judiciary) and other relevant authorities including the 2nd and 3rd respondents to give effect to the applicant's certificate of birth No. 648XXX dated 29.10.1999 certifying that the applicant was born on 30.12.1949
- 3.Order of prohibition issued directed to the respondents jointly and severally barring them from acting on or implementing the Government policy directions dated 15.11.1982, 28.11.1990, 25.09.2008 and 14.10.2013 in making their decision to retire the applicant
- 4.The 1st and 2nd respondents to jointly or severally pay the applicant's costs of the leave stage and substantive proceedings
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (Cap. 26) and Order 53 of the Civil Procedure Rules, 2010 (judicial review); Articles 47, 172(1)(b) and 236 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Judicial Service Commission & 2 others; Githinji (Exparte) (Judicial Review Application 8 of 2019) [2019] KEELRC 1286 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion filed 16.04.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1286/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.