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ELRCPartially AllowedPetition (not stated on the face of the judgment; Petition dated 25/10/2018, Amended Petition dated 07/11/2018)· [2019] KEELRC 1752 (KLR)

Gitonga v Judicial Service Commission (Petition 116 of 2018) [2019] KEELRC 1752 (KLR)

Employment and Labour Relations Court
30 April 2019
6,515 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner, a former Principal Magistrate, petitioned the Judicial Service Commission (JSC) claiming that his interdiction on 16/11/2015 and subsequent dismissal on 09/02/2017 from judicial service were unconstitutional and procedurally unfair. The discipline arose from a complaint that he delivered judgment in Mombasa CMCC No. 974 of 2014 a day earlier than scheduled, in the absence of one party, plus allegations of absenteeism. He sought declarations that the interdiction and dismissal offended natural justice, Articles 41, 47 and 236 of the Constitution, the Employment Act, the Judicial Service Act and the Fair Administrative Action Act, judicial immunity, reinstatement with back salaries, 12 months' compensation, aggravated damages and costs. The JSC maintained that the disciplinary process complied with the Third Schedule to the Judicial Service Act, that the Petitioner was heard, and that judicial immunity does not extend to disciplinary action. The court framed three issues: whether the Petition disclosed a constitutional case, whether rights were breached, and whether remedies were due. Applying Anarita Karimi Njeru and Mumo Matemu, it found the Petition properly pleaded. On the merits, it held the interdiction lawful because proceedings leading to dismissal were underway, and that the Petitioner was heard, with the absenteeism charge not proved. However, it found the 15-month delay breached Article 47's requirement of expeditious administrative action. The Petition was partially allowed: damages of Kshs. 1,000,000/- were awarded for that breach, and the Respondent was ordered to pay costs. Reinstatement, back salaries, twelve months' compensation and other declarations were refused as the labour-rights remedies sought were found unsuitable. Judgment was delivered on 30th April 2019 by Hellen Wasilwa, J.

Key legal issues

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01

Whether the Petition disclosed with reasonable precision the constitutional provisions infringed

Holding

The Petitioner clearly set out his case and cited the relevant law allegedly infringed

Reasoning

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.

p. 8
02

Whether the summary interdiction without a prior hearing breached natural justice

Holding

The interdiction was lawful; interdiction need not be preceded by a hearing where proceedings that may lead to dismissal are being taken

Reasoning

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.

p. 10
03

Whether the Petitioner was condemned unheard at the disciplinary hearing

Holding

The Petitioner was heard; he knew the charges, was given 21 days to respond and explained his case before the committee

Reasoning

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.

p. 11
04

Whether the 15-month delay in concluding the disciplinary process infringed Article 47

Holding

The 15-month delay breached the right to expeditious administrative action and the Petitioner was awarded Kshs. 1,000,000/- in damages

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 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. 2.The Respondent to pay costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(4), 3(4), 10, 10(2)(a)(b), 19, 19(2), 20, 21, 22, 23, 23(1), 23(3)(b), 23(3)(e), 27(1), 28, 29(d)(f), 35, 41, 44, 47, 47(1), 50, 50(1), 73, 73(1)(a)(i)(b)(d), 159(2)(a)(b)(c), 160(1), 160(5), 162(2)(a), 171(1)(2), 172, 172(1)(c), 232, 232(c)(e)(f), 236, 236(a)(b), 236(b), 258, 260
  • Judicial Service ActSection 32(1), Section 45, Third Schedule Regulations 15(1)(2), 16, 25
  • Fair Administrative Action ActSection 4(1), (2), (3), Section 47
  • Employment ActSection 41
  • Access to Information ActSection 9
  • Civil Procedure RulesOrder 12
  • Judiciary Human Resource Policies and Procedures ManualRegulation D6

Cases cited (19)

  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2007] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others
    [2015] eKLR
  • Kalpana Rawal v Judicial Service Commission & 4 others
    [2015] eKLR
  • Methodist Church in Kenya Trustees Registered & Anor v Rev. Jeremiah Muku & Anor
    [2012] eKLR
  • Richard Bwogo Birir v Narok County Government & 2 Others
    [2014] eKLR
  • Reuwel Waithaka Gitahi & 2 others v Kenya Revenue Authority
    [2016] eKLR
  • Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another
    [2018] eKLR
  • Robin Nyamohanga v Judicial Service Commission (Kisumu ELRC Cause 12/2015)
    [2017] eKLR
  • Kenya Union of Printing, Publishing, Paper Manufacturers & Allied Workers v Timber Treatment International Ltd
    [2013] eKLR
  • Republic v Public Procurement Administrative Review Board & 3 others
    [2017] eKLR
  • Selvarajan v Race Relations Board
    [1976] 1 All ER 12
  • Utalii Transport Company Ltd & 3 Others v NIC Bank Ltd & Another
    [2014] eKLR
  • Republic v Advocates Disciplinary Tribunal Exparte Apollo Mbboya
    [2019] eKLR
  • Michael Dowling v Workplace Safety & Insurance Board
    [2004] CAN LII 436 92
  • Judicial Service Commission & Gladys Boss Shollei & another
    [2014] eKLR
  • Nkatha Joy Faridah Mbaabu v Kenyatta University
    [2016] eKLR
  • Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance
    (2013) eKLR
  • Anarita Karimi Njeru
    (1999) KLR 154
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

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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, "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.