Kamwele v Public Service Commission (Petition 103 of 2019) [2020] KEELRC 530 (KLR)
The bottom line
#A Kenyan court ruled a magistrate's dismissal was procedurally unfair, but only awarded limited compensation because the misconduct grounds themselves were valid.
What this practically means
#Executive summary
#Key legal issues
#Whether dismissal on the first charge (release of six convicted persons on one Kenyan surety without security) usurped the High Court's supervisory jurisdiction or breached judicial immunity
No. The Commission considered the Petitioner's conduct, not the merits of his judicial decision; the decision was reviewed by a Garissa High Court judge under Article 165(6); the grounds of dismissal were valid under Article 168(1)(d) and (e) and the Petitioner's own admissions negatived good faith.
The court distinguished between a judicial decision (protected, reviewable only by the High Court) and the manner of its exercise. The Petitioner admitted excitement, reliance on personal knowledge of an unsecured surety, and reliance on stale, uncertified medical reports. Conduct of that character is administrative misconduct properly within the JSC's disciplinary mandate under Article 172(1)(c) and is not shielded by judicial immunity.
Whether the disciplinary process complied with paragraph 25(4) of the Third Schedule (14 days' notice)
It did not. The Petitioner was given only 7 days' notice and no reason was given for the deviation, rendering the termination procedurally unfair and unlawful to that extent.
The notice for the hearing was changed to 30 January 2017 but still fell short of the mandatory 14-day written notice. The court invoked Article 47(1) and section 4 of the Fair Administrative Action Act to find that non-compliance with a prescribed procedure is itself a violation of fair administrative action. This tainted the procedural fairness of the dismissal on the first charge.
Whether the hearings of 31 January and 13 February 2017, at which adverse witnesses testified in the Petitioner's absence, were fair
They violated Article 47 and section 4(3) and (4) of the Fair Administrative Action Act. However, the 13 February 2017 hearing and the second dismissal letter of 15 February 2017 were inconsequential because the Petitioner had already been dismissed on 9 February 2017.
There was no record of any invitation to the Petitioner to attend those proceedings and no opportunity to cross-examine adverse witnesses (Hussein Saddam, Aisha Ibrahim, Fatuma Hussein and Hon. Chirchir Cherono). The Respondent did not controvert the Petitioner's evidence on this. Nevertheless, having been dismissed on the first charge on 9 February 2017, there was no longer an employment relationship capable of termination by the second letter.
Whether the Petitioner's suspension on nil alimentary allowance was lawful
No. Paragraph 17(3) mandates an alimentary allowance and the Respondent had no discretion to deny it, though the Petitioner's own tabulation was rejected for lack of justification.
The court held the words of paragraph 17(3) are mandatory. Notwithstanding the gravity of the charges, the Respondent had no basis for denying the allowance. Because the Petitioner's arithmetic lacked any supporting basis, the court directed the Respondent itself to tabulate the allowance from suspension to termination and file it within 30 days for adoption.
Legal principles established
#- Judicial immunity is not for the personal benefit of judges but for the protection of the administration of justice; a judicial officer may be disciplined for misconduct in the manner of exercising judicial authority, notwithstanding Article 160(5).
- Where the law prescribes a procedure for administrative action, non-compliance with the prescribed procedure constitutes a violation of the right to fair administrative action under Article 47(1).
- An officer under suspension must be granted an alimentary allowance in mandatory terms under paragraph 17(3) of the Third Schedule to the Judicial Service Act; the Commission has no discretion to suspend it.
Court orders
#- 1.Declared that the Respondent breached the Petitioner's constitutional rights and freedoms under Articles 28, 41, 47 and 236(b) of the Constitution as read with section 4(1) of the Fair Administrative Action Act and paragraphs 17(3) and 25(4) of the Third Schedule to the Judicial Service Act
- 2.Declined to declare the dismissal and disciplinary proceedings invalid, null and void ab initio or to annul, revoke, quash or set them aside
- 3.Declared that the Petitioner was entitled to an alimentary allowance under paragraph 17(3) of the Third Schedule to the Judicial Service Act and directed the Respondent to tabulate the alimentary allowance payable from the date of suspension until termination and file the tabulation within 30 days for adoption by the Court
- 4.Rejected the claim for accrued back salaries and arrears
- 5.Awarded the Petitioner 4 months' salary as compensation for unlawful and unfair termination
- 6.Ordered the Respondent to bear the costs of the petition
- Jurisdiction invoked
- Article 162(2) of the Constitution (employment and labour relations court) read with Articles 41, 47 and 236 and the Judicial Service Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamwele v Public Service Commission (Petition 103 of 2019) [2020] KEELRC 530 (KLR)", Case Analysis (2020). Petition No 103 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/530/eng@2020-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.