Waweru v Judicial Service Commission (Cause 376 of 2019) [2020] KEELRC 20 (KLR)
The bottom line
#Kenya's Employment Court ruled that only the Chief Justice can suspend Judiciary staff, voiding the Chief Registrar's suspension and ordering all withheld salary paid.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to intervene in an ongoing disciplinary process
The Court has jurisdiction where the disciplinary process is alleged to be illegal or in violation of constitutional, statutory or contractual rights; here jurisdiction was properly invoked.
The general rule is that courts should not intervene in disciplinary processes before conclusion, but exceptions exist where the process is unfair, offends natural justice, or breaches legislated or contractual standards. The claimant alleged the suspension itself was unlawful because it was done by the CRJ without mandate, tainting the process with illegality and violating his constitutional rights, so the jurisdictional threshold was met.
Usurpation of JSC disciplinary powers
The suit was not a usurpation; the Court only interrogated the validity of the interlocutory suspension, not the merits of the disciplinary case.
The court cannot stop disciplinary proceedings without good cause or determine the merits before the JSC, but following Rebecca Ann Maina it may intervene 'to put things right'. The only matter interrogated was the validity of the CRJ's suspension without pay, so the JSC's disciplinary function was untouched.
Validity of the suspension by the CRJ
The suspension was unlawful and void ab initio because the CRJ lacked the mandate to suspend; that power lies with the CJ under paragraph 15 of the Third Schedule and the HR Manual.
Section 8(1)(e) of the JSA gives the CRJ general HR functions including initiating disciplinary proceedings via show cause, but the specific provisions of paragraph 15 of the Third Schedule delegate the power to suspend or interdict to the CJ. The specific prevails over the general. The CRJ signed the suspension letter without authority, rendering it void ab initio both in law and under the contract of service.
Constitutional violations
The unlawful suspension violated Article 41 (fair labour practices) but the Article 40 property claim failed.
The respondent had power to suspend but only in compliance with the law and the HR Manual; the unlawful suspension with total withholding of salary caused serious financial stress, breaching fair labour practices. The property claim was not proved. Damages were refused because the violator was not joined and the withheld salaries sufficed.
Legal principles established
#- The power to suspend or interdict both judicial officers and judicial staff vests in the Chief Justice under paragraph 15 of the Third Schedule to the Judicial Service Act and clauses 7.5.1 and 7.5.2 of the HR Policy and Procedures Manual, not the Chief Registrar.
- A specific statutory provision takes precedence over a general one of equal rank.
- The term 'officer' in the Third Schedule to the JSA and the HR Manual includes judicial staff.
Court orders
#- 1.Declaration that suspension of the claimant done vide the letter dated 27.2.2019 is unlawful and void ab initio.
- 2.Declaration that the claimant's right to fair labour practices has been violated through the said unlawful suspension.
- 3.The suspension of the claimant done vide the CRJ's letter dated 27.2.2019 is revoked, lifted and/or set aside.
- 4.Direction that all the salaries and benefits withheld from the claimant from February 2019 on account of the said unlawful suspension be released to him forthwith.
- 5.An order of permanent injunction restraining the Respondent, whether by itself or its officers or any other persons whatsoever from withholding salary and benefits accruing and due to the Claimant based on the unlawful suspension done vide the letter dated 27.2.2019.
- 6.The Claimant is awarded costs and interest.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Constitution and the Employment and Labour Relations Court Act (employment and constitutional rights under Articles 40 and 41); not expressly pinned to a single article in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru v Judicial Service Commission (Cause 376 of 2019) [2020] KEELRC 20 (KLR)", Case Analysis (2020). Cause No 376 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/20/eng@2020-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.