Gitonga v Judicial Service Commission (Petition 116 of 2018) [2019] KEELRC 1752 (KLR)
The bottom line
#A Kenyan court upheld a judge's interdiction but awarded him KShs 1 million because the disciplinary process dragged on for 15 months.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition disclosed with reasonable precision the constitutional provisions infringed
The Petitioner clearly set out his case and cited the relevant law allegedly infringed
Applying the Anarita Karimi Njeru and Mumo Matemu standard, the court found the Petition articulated the provisions infringed and the manner of infringement, settling the first issue in the Petitioner's favour.
Whether the summary interdiction without a prior hearing breached natural justice
The interdiction was lawful; interdiction need not be preceded by a hearing where proceedings that may lead to dismissal are being taken
The Chief Justice exercised delegated disciplinary powers under Regulation 15 of the Third Schedule to the Judicial Service Act, and Regulation 16 permits interdiction in the public interest where dismissal proceedings are being or are about to be taken. The interdiction letter indicated such proceedings were being taken, and the HR Manual provisions govern the whole disciplinary process, not the interdiction stage alone.
Whether the Petitioner was condemned unheard at the disciplinary hearing
The Petitioner was heard; he knew the charges, was given 21 days to respond and explained his case before the committee
The Petitioner was served with charges dated 16/11/2015, responded on 30/11/2015, was invited for an oral hearing, and the proceedings show he answered all questions put to him. The charge of habitual absenteeism was not proved. The court therefore found no infringement of Article 41.
Whether the 15-month delay in concluding the disciplinary process infringed Article 47
The 15-month delay breached the right to expeditious administrative action and the Petitioner was awarded Kshs. 1,000,000/- in damages
The Petitioner was interdicted on 16/11/2015 and dismissed on 9/2/2017. The court found such a delay long, painful and inconsistent with Article 47 and Section 4 of the Fair Administrative Action Act, observing that justice delayed is justice denied, and compensated the Petitioner for this single breach.
Legal principles established
#- Interdiction is not a stand-alone disciplinary event and does not require a prior hearing so long as proceedings that may lead to dismissal are being taken
- A disciplinary process that takes 15 months breaches the Article 47 right to administrative action that is expeditious and is unfair
Court orders
#- 1.Damages of Kshs. 1,000,000/- awarded to the Petitioner for breach of his right to administrative action that is expeditious under Article 47 of the Constitution
- 2.The Respondent to pay costs of the Petition
- Jurisdiction invoked
- Articles 10, 19, 20, 21, 22, 23, 73, 160(1), 5, 162(2)(a), 232, 258 and 260 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitonga v Judicial Service Commission (Petition 116 of 2018) [2019] KEELRC 1752 (KLR)", Case Analysis (2019). Petition (not stated on the face of the judgment; Petition dated 25/10/2018, Amended Petition dated 07/11/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1752/eng@2019-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.