Wahome v Judicial Service Commission (Employment and Labour Relations Petition E094 of 2023) [2023] KEELRC 3058 (KLR)
The bottom line
#Kenya's Employment Court upheld a magistrate's dismissal by the Judicial Service Commission but ruled his four-year unpaid suspension was unlawful and he must be compensated.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the disciplinary process violated the Petitioner's constitutional right to fair administrative action, fair labour practices and access to information
- 2.Whether the disciplinary process was marred by actual and/or implied bias
- 3.Whether there was inordinate delay in the determination of his disciplinary hearing
- 4.Whether the Petitioner is entitled to the reliefs sought
Key legal issues
#Initiation of disciplinary proceedings without a formal complaint
JSC was entitled to act on its own initiative based on the Cherere proceedings
The Petitioner's disciplinary case arose from findings in the disciplinary proceedings against Hon. Lady Justice Cherere, in which the JSC committee recommended disciplinary action against him. Article 252(1)(a) empowers commissions to investigate on their own initiative, so no independent complaint was required, and the Notice to Show Cause clearly set out the charges.
Procedural fairness of the disciplinary process and dismissal
The process complied with paragraph 25 of the 3rd Schedule of the Judicial Service Act and section 41 of the Employment Act
The Petitioner was issued a Notice to Show Cause, responded, was supplied documentary evidence, was represented by counsel, cross-examined witnesses, received the Hansard, and was dismissed only after committee deliberation and JSC adoption of the report. Valid reasons for dismissal - receipt of bribe money as conduit - were proved through M-Pesa transactions with advocate Namatsi.
Bias of the disciplinary panel
No actual or apparent bias established
The Petitioner had affirmed at the outset that he had no objection to the panel's constitution; raising the objection later was an afterthought. The Hansard from the Cherere proceedings was directly and substantially relevant as the case against him emanated from those proceedings. Applying the Shollei objective test, a fair-minded observer would not apprehend bias.
Inordinate delay
Delay was justified and excusable
Applying Karani v Judicial Service Commission, delay must be assessed case by case. The Respondent explained the delay by Covid-19 lockdown measures, its part-time composition capped meetings, involvement in judicial recruitment, and the Petitioner's own adjournment and being locked out of Nairobi. The delay therefore did not violate his rights.
Suspension without pay
Suspension without pay for nearly four years was unlawful; the Petitioner is entitled to alimentary allowance
Following Byran Mandila Khaemba, section 17 of the Judicial Service Act does not permit suspension without pay; paragraph 17(3) of the 3rd Schedule provides for an alimentary allowance. The Respondent's limitation defence fails because suspension is not a ground for termination. The court directed JSC to fix the amount payable within 90 days for a final award.
Legal principles established
#- A commission may initiate disciplinary proceedings on its own initiative without a formal complaint
- Suspension without pay of a judicial officer is not sanctioned by the Judicial Service Act; a suspended officer is entitled to alimentary allowance
- Delay alone does not establish a rights infringement; the court must interrogate whether it is justifiable and excusable
Court orders
#- 1.Prayers i, ii, iv, v, vii, viii and x denied for lack of merit
- 2.JSC directed to consider fairly what amount it should have paid the Petitioner as alimentary allowance for the period of suspension and advise the court within 90 days, enabling the court to give a final award
- 3.Mention on 29th February 2024 for that report
- 4.Each party to meet their respective costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction over a judicial officer's employment; Employment Act 2007 and Judicial Service Act, 3rd Schedule
Relief refused
#Prayers i, ii, iv, v, vii, viii and x (challenging suspension process, dismissal and alleged rights violations)
The Respondent complied with procedural fairness under the Judicial Service Act and Employment Act and had substantive justification for dismissal
Relief for inordinate delay
Delay was justified by Covid-19 lockdown, JSC's part-time nature and the Petitioner's own adjournments
Costs
Each party will meet their respective costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the Respondent is not limited to institute disciplinary proceedings against the Petitioner based on a complaint made against him. The Hansard of the disciplinary proceedings against Hon. Lady Justice Cherere was enough to form a basis of inquiry against him.
For that reason, this court reads no bias in the Respondent's conduct of the Petitioner's disciplinary case.
Accordingly, the delay was justified.
The respondent should not have suspended the petitioner indefinitely without any pay.
Since the law does not provide the amount to be paid during suspension the court will ask JSC to consider fairly what amount they should have paid the petitioner as alimentary allowance for the period he was under suspension and advise the court within 90 days from today's date to enable court give final award. Mention on 29th February 2024 for that report.
As for the costs each party will meet their respective costs.
Issues in the judgment
#The dismissal date appears inconsistently as 27th February 2022 in the Petition and 27th February 2023 in the Respondent's submissions and the court's own narration
The suspension letter date is inconsistently given as 20th May 2019 in the Petition and 30th May 2019 in the court's discussion of prayer iii
The judgment leaves the alimentary allowance quantum unresolved, directing a further report rather than a final award
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wahome v Judicial Service Commission (Employment and Labour Relations Petition E094 of 2023) [2023] KEELRC 3058 (KLR)", Case Analysis (2023). Petition dated 24th May 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3058/eng@2023-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.