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ELRCDismissedPetition (ELRC, Nairobi)· [2021] KEELRC 1796 (KLR)

Maureen Cherono Nyigei v Chief Justice and President of the Supreme Court of Kenya & another [2021] KEELRC 1796 (KLR)

Employment and Labour Relations Court
29 April 2021
6,246 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld the Judicial Service Commission's right to discipline a magistrate, ruling her interdiction was fair despite a 17-month delay.

What this practically means

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Executive summary

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The petitioner, a Senior Resident Magistrate formerly serving as Deputy Registrar at Bomet, was interdicted by the 1st respondent, the Chief Justice acting for the Judicial Service Commission, in February 2018 for allegedly un-procedurally cancelling a Notice of Appeal. She was given a letter of query, a show cause letter and an opportunity to respond in writing, but declined to answer the allegation, admitting instead that she had cancelled the Notice of Appeal based on her legal interpretation. Following prolonged silence of over a year, she filed this petition seeking declarations that the interdiction letter and provisions of the Third Schedule to the Judicial Service Act were unconstitutional, plus certiorari, prohibition, mandamus (reinstatement) and damages. While the petition was pending, the disciplinary process concluded: she was reinstated but severely reprimanded and made to forfeit her withheld half salary, and she lodged an internal appeal. The respondents argued the petition had been overtaken by events. The court held that although circumstances may be overtaken by events, allegations of constitutional violation cannot be, and proceeded to determine the issues on the pleadings as filed. It found the interdiction procedurally fair under Articles 47, 50 and 236 and the Third Schedule to the JSA; that the petitioner admitted the offence; that the 17-month delay was explained by the Commission's quorum deficits and was not unreasonable, applying the Ndururi decisions; and that paragraphs 15, 16 and 17(3) of the Third Schedule are neither unconstitutional nor in conflict with the JSA, following Bryan Mandila Khaemba. All declaratory, judicial review and damages reliefs were declined, and the petition was dismissed with no order as to costs.

Key legal issues

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01

Whether the petition was overtaken by events after the disciplinary process concluded in the petitioner's reinstatement

Holding

The petition was not fully overtaken by events because allegations of constitutional violation survive the resolution of the underlying circumstances

Reasoning

The court held that while circumstances may be overtaken by events, constitutional violations cannot, since Bill of Rights freedoms exist to preserve human dignity. It relied on Kitale Shuttle Ltd and Sollo Nzuki to hold that a High Court shirks its constitutional duty if it refuses to enforce the Bill of Rights merely because the subject matter has been resolved.

p. 6
02

Whether the interdiction and disciplinary process were unlawful and breached the petitioner's constitutional rights

Holding

No breach; the petitioner was accorded a hearing, admitted the offence, and the process complied with Articles 47, 50 and 236 and the Third Schedule to the JSA

Reasoning

The court found the petitioner was given a letter of query, a show cause letter with 21 days to respond, and an oral hearing before a JSC committee, and that she admitted cancelling the Notice of Appeal. Following Rebecca Ann Maina, the court does not usurp employer disciplinary functions absent justification or procedural impropriety, none of which was shown.

p. 7
03

Whether the 17-month delay in concluding the disciplinary process amounted to a violation of fair administrative action

Holding

The delay was not unreasonable; the explanation (vacancies and challenges to commissioners' appointments) was plausible

Reasoning

The court applied its own decision in Joseph Riitho Ndururi and the Court of Appeal's subsequent affirmation in Judicial Service Commission v Joseph Riitho Ndururi, holding that a 19-month delay was not inordinate where the Commission lacked quorum. The same reasoning applied to the 17-month delay here, since the JSC must have the requisite quorum before deliberating.

p. 7
04

Whether paragraphs 15, 16 and 17(3) of the Third Schedule to the JSA are unconstitutional or in conflict with sections 13, 14 and 32 of the JSA

Holding

No conflict or unconstitutionality established; the delegated power to suspend or interdict is properly vested in the Chief Justice

Reasoning

Adopting Ongaya J's holding in Bryan Mandila Khaemba, the court concurred that the imposed delegation under paragraphs 15 and 17 of the Third Schedule is an administrative role properly vested in the Chief Justice under Article 161(2)(a), and extended the same reasoning to the power to interdict under paragraph 16. The petitioner also failed to prove the alleged unconstitutionality of paragraph 17(3).

p. 7

Legal principles established

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  • A petition alleging violation of fundamental rights and freedoms cannot be defeated merely because it has been overtaken by events
  • The court will not ordinarily interfere with an employer's disciplinary function save where there is justification or procedural impropriety
  • An employer's explanation of quorum deficits and related litigation may render lengthy delay in disciplinary proceedings reasonable

Court orders

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  1. 1.The petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 23(3)(a) & (d), 25(c), 28, 31, 41, 47, 48, 50, 50(1), 73, 160(1) & (5), 161(2)(a), 165, 172(1), 232, 236, 253, 255(1)(a),(c),(d) & (g)
  • Judicial Service Act, No. 1 of 2011Sections 13, 14, 32(1) & (3); Third Schedule Part IV, Paragraphs 15, 16, 17(3), 26(1)
  • Employment ActSections 19, 41(2), 43(1) (cited as Employment Act, 2019 by the petitioner)
  • Public Officers Ethics ActPart III, paragraph 9(a), Appendix 1 (Rule 5 of the Judicial Service Code of Conduct and Ethics)
  • Civil Procedure RulesOrder 42 Rule 15
  • Legal Notice No. 132 of 2016 (Judicial Code of Conduct and Ethics)revoked Code
  • ELRC Procedure RulesRule 28(3)

Cases cited (21)

  • Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 Others
    [2014] eKLR
  • Republic v Board of Governors Our Lady of Victory Girls School Kapnyeberai & another ex-parte Korir Kipyego Joseph & ano
    [2015] eKLR
  • Nyogesa & 4 Others v Egerton University College
    (1990) KLR 962
  • Joseph Ndungu v Mastermind Tobacco (K) Ltd
    [2014] eKLR
  • Bryan Mandila Khaemba v The Chief Justice and President of the Supreme Court of Kenya & another
    [2019] eKLR
  • Kizito M. Lubano v Kemri Board of Management and 8 others
    [2015] eKLR
  • John Gakuo & Ano v County Government of Nairobi, Governor & 2 Others
    [2018] eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
  • Ezekial Nyangoya Okemwa v Kenya Marie Fisheries Institute
    [2016] eKLR
  • Julius Ndumba Mbogori & ano v Nairobi City County
    [2018] eKLR
  • Obonyo and ano v Municipal Council of Kisumu
    [1971] EA 91
  • Judith Mbayah Tsisiga v Teachers Service Commission
    [2017] eKLR
  • Judicial Service Commission v Gladys Boss Shollei & ano
    [2014] eKLR
  • Commission for the Implementation of the Constitution v Parliament and 5 Others
    Petition No. 154 of 2012
  • Olive Mugenda & Ano v Okiya Omtatah & 4 others
    [2019] eKLR
  • Kitale Shuttle Ltd & 5 others v County Government of T/Nzoia
    [2015] eKLR
  • Sollo Nzuki v Salaries and Remuneration Commission & 2 others
    [2019] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Joseph Riitho Ndururi v Judicial Service Commission
    [2019] eKLR
  • Judicial Service Commission v Joseph Riitho Ndururi
    [2021] eKLR
  • Kenya Magistrates and Judges Association v Judicial Service Commission & 2 others
    [2020] eKLR
Jurisdiction invoked
Articles 165, 23(3)(a) & (d) and 47, 50, 236 of the Constitution of Kenya, 2010; Judicial Service Act, No. 1 of 2011

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, "Maureen Cherono Nyigei v Chief Justice and President of the Supreme Court of Kenya & another [2021] KEELRC 1796 (KLR)", Case Analysis (2021). Petition (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1796/eng@2021-04-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.