Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedPetition No 103 of 2019· [2020] KEELRC 530 (KLR)

Kamwele v Public Service Commission (Petition 103 of 2019) [2020] KEELRC 530 (KLR)

Employment and Labour Relations Court
12 August 2020
7,278 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

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

#
A former Resident Magistrate petitioned the Employment and Labour Relations Court challenging his dismissal by the Judicial Service Commission. He faced two charges: first, releasing six convicted persons on bond pending appeal on a single Kenyan surety without security, in a concluded case where the court was functus officio; second, receiving a Kshs.50,000 bribe as 'cash bail'. He argued the proceedings breached natural justice, the Fair Administrative Action Act and the Third Schedule to the Judicial Service Act, and that he was shielded by judicial immunity under Article 160(1) and (5). The court held that the Commission disciplined the Petitioner's conduct, not the merits of his judicial decision — which had been reviewed by a High Court judge — and that judicial immunity protects the administration of justice, not the officer. His own admissions negatived good faith, so the grounds of dismissal on the first charge were valid. However, the process was procedurally flawed: he received only 7 days' notice instead of the mandatory 14 under paragraph 25(4), and the hearings of 31 January and 13 February 2017 proceeded in his absence without cross-examination of adverse witnesses, violating Articles 28, 41, 47 and 236(b). The second dismissal was inconsequential as he had already been dismissed. The court declined to nullify the dismissal (more than three years had elapsed) but declared the rights violations, awarded 4 months' salary as compensation for unfair termination, directed the Respondent to tabulate the mandatory alimentary allowance denied during suspension, rejected the claim for accrued back salaries, and awarded the Petitioner costs.

Key legal issues

#
01

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

Holding

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.

Reasoning

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.

p. 6
02

Whether the disciplinary process complied with paragraph 25(4) of the Third Schedule (14 days' notice)

Holding

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.

Reasoning

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.

p. 8
03

Whether the hearings of 31 January and 13 February 2017, at which adverse witnesses testified in the Petitioner's absence, were fair

Holding

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.

Reasoning

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.

p. 8
04

Whether the Petitioner's suspension on nil alimentary allowance was lawful

Holding

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.

Reasoning

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.

p. 9

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. 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. 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. 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. 4.Rejected the claim for accrued back salaries and arrears
  5. 5.Awarded the Petitioner 4 months' salary as compensation for unlawful and unfair termination
  6. 6.Ordered the Respondent to bear the costs of the petition

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 2(4), 10(2)(a) & (c), 24, 27(1), 28, 35, 41(1), 47(1) & (2), 48, 159(2)(d), 160(1) & (5), 165(6), 168(1)(d) & (e), 171(1)(c), 172(1)(c), 236(a) & (b)
  • Fair Administrative Action ActSections 4(1), (2), (3) & (4)(c), 6(1)(h) & (i), 7
  • Judicial Service ActSections 32, 45; Third Schedule Part IV paragraphs 17(1), (2) & (3), 23(1) & (2), 25(4), (5), (8), (9), (10) & (11); regulation 19(1)
  • Criminal Procedure CodeSections 356, 362
  • Access to Information ActSections 6(1)(h) & (i)
  • Code of Conduct and Ethics for Judicial OfficersPart III, Regulations 12 and 13
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (12)

  • National Cereal Produce Board v John Kirui Torongei
    [2017] eKLR
  • Republic v County Director of Education, Nairobi & 4 Others ex parte Abdukadir Elmi Robleh
    [2018] eKLR
  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others
    [2007] eKLR
  • Kalpana H. Rawal v Judicial Service Commission & 4 Others
    [2015] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral Boundaries Commission & 7 Others
    [2015] eKLR
  • Republic v James Kiarie Mutungei
    [2017] eKLR
  • Bhandari v Advocates Committee
    [1956] 3 All ER 742
  • Re a Solicitor
    [1993] QB 69
  • Bellevue Development Company Limited v Francis Gikonyo & 7 Others
    [2018] eKLR; also Supreme Court Petition 42 of 2018 [2020] eKLR
  • Bryan Mandila Khaemba v Chief Justice and President of the Supreme Court of Kenya & Another
    [2019] eKLR
  • Simon Rotich Ruto v Judicial Service Commission & Another
    [2019]
  • Curtis W. Cook (Commission on Judicial Conduct, State of New York)
    unreported (cited with Matter of Jutkofsky, Dec. 24, 1985)
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.