Kenya Magistrates and Judges Association v Judicial Service Commission & 2 others (Petition 150 of 2019) [2020] KEELRC 533 (KLR)
The bottom line
#Kenya's Employment Court ruled only the Judicial Service Commission can discipline judges, and indefinite suspension of judicial officers is unconstitutional.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of the delegation of disciplinary powers (interdiction, suspension, reprimand) to the Chief Justice under paragraphs 15, 16, 17, 20 and 25 of the Third Schedule of the Judicial Service Act
The delegation is constitutional. The Chief Justice's role under those paragraphs is administrative only - to establish a prima facie case, remove the officer from performing duties, and refer charges to the JSC for hearing - and there is no conflict with Sections 14 and 32 of the Act or Article 172 of the Constitution.
The court distinguished between the functions of the Chief Justice (head of the Judiciary exercising general direction and control under Section 5 of the JSC Act) and the disciplinary functions of the JSC under Article 172(1)(c) and Section 32. Paragraphs 16(4) and 19 show interdiction and suspension are not punishments but administrative measures; paragraphs 25 and 26 reserve the disciplinary hearing to the JSC. The Chief Justice does not hear disciplinary cases nor remove officers from office. The court also held the issues were conclusively determined in Bryan Mandila Khaemba, invoking issue estoppel.
Whether the JSC can delegate its disciplinary powers to the Chief Justice
The powers delegated are administrative, not disciplinary; the statute itself (by Parliament, not the JSC) effects the delegation, and the Chief Justice remains accountable to the Commission.
The Chief Registrar deponed that the delegation is effected by Parliament through the Third Schedule, not by the JSC's own act. The court held that Section 14 concerns delegation of day-to-day administrative management, and the impugned paragraphs delegate administrative functions (framing charges, removal from performing duties) while substantive investigation and hearing remain with the JSC under paragraphs 25 and 26.
Whether indefinite and unrestricted periods of interdiction or suspension are constitutional
Indefinite interdiction or suspension violates Articles 25(a) and (c), 28 and 50 of the Constitution; the provisions should specify a duration for such measures.
The court held that an interdicted or suspended officer is prejudiced by reduced income and removal from duties, which in a way constitutes punishment. Since Article 28 protects dignity and the officer is left in limbo over their job, subjecting them to the situation indefinitely amounts to inhuman treatment. Certainty of duration is necessary for accountability. However, the court noted the Schedule actually provides for half pay on interdiction and alimentary allowance on suspension, and recommended administrative redress.
Whether suspension or interdiction on nil salary is unconstitutional
The contention fails because the Third Schedule does not provide for nil salary: interdicted officers receive not less than half salary plus allowances, and suspended officers receive an alimentary allowance; withheld salary is restored on acquittal.
Relying on the express terms of paragraphs 16 and 17 of the Third Schedule, the court found that officers on interdiction are entitled to half basic pay and allowances, and those suspended receive an alimentary allowance, with withheld salary released if the officer is absolved. The court also endorsed employment jurisprudence that payment during interdiction depends on the outcome of the disciplinary process.
Whether the petition is barred by issue estoppel by the decision in Bryan Mandila Khaemba v Chief Justice & Another
The issues of delegation under paragraphs 15, 16 and 17 were conclusively dealt with in Khaemba, and the petitioner is estopped from relitigating them.
The court adopted the definition of issue estoppel in George Kamau Kimani and the Supreme Court's broader approach in Communications Commission of Kenya v Royal Media Services. It perused the Khaemba judgment and found the same issues of delegation to the Chief Justice were finally determined there, and even observed that portions of the petitioner's submissions were reproduced from the Khaemba petition, despite the petitioner itself not having been suspended in that matter.
Legal principles established
#- The Judicial Service Commission is the only body under Article 172(1)(c) of the Constitution obligated to appoint, receive complaints against, investigate and remove or otherwise discipline judicial officers and staff
- Interdiction and suspension are administrative, interlocutory measures and not punishments; the Chief Justice's role is limited to removing an officer from performing duties and referring charges to the JSC for hearing
- Indefinite suspension or interdiction violates Articles 25, 28 and 50 of the Constitution
- There is no conflict between paragraphs 15, 16, 17, 20 and 25 of the Third Schedule to the Judicial Service Act and Sections 14, 20 and 32 of the Act or Article 172 of the Constitution
- The issues of delegation of disciplinary powers to the Chief Justice under paragraphs 15, 16 and 17 of the Third Schedule were conclusively determined in Bryan Mandila Khaemba v Chief Justice and President of the Supreme Court of Kenya & Another, and are res judicata / issue estopped
Court orders
#- 1.A declaration that pursuant to Article 172(1)(c) of the Constitution, the Judicial Service Commission through its secretariat or a subcommittee is the only body obligated by law to appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the judiciary
- 2.A declaration that indefinite suspension or interdiction amounts to a violation of Article 25(a) and (c), Article 28 and Article 50 of the Constitution (Prayer (f) granted)
- 3.Recommendation that the respondents address administratively the provision of a duration for any suspension or interdiction, and for extension thereof with reasons on a case by case basis
- 4.Dismissal of the petition on all other prayers
- 5.No orders for costs
- Jurisdiction invoked
- Original constitutional jurisdiction under Articles 22 and 23 of the Constitution of Kenya, 2010 (petition challenging constitutionality of provisions of the Judicial Service Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Magistrates and Judges Association v Judicial Service Commission & 2 others (Petition 150 of 2019) [2020] KEELRC 533 (KLR)", Case Analysis (2020). Petition filed 23rd July 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/533/eng@2020-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.