Wasilwa v Judicial Service Commission; Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers & 3 others (Interested Parties) (Petition E237 of 2023) [2025] KEELRC 281 (KLR)
The bottom line
#Kenya's Employment Court ruled the Judicial Service Commission must first decide a judge's jurisdictional objections before disciplining her over a ruling.
What this practically means
#Executive summary
#Key legal issues
#Whether the JSC was required to determine the petitioner's threshold objections on jurisdiction/competence before proceeding with the complaint
Yes. The JSC's failure to address or decide the objections, or disclose reasons, was a fundamental legal misstep violating article 47.
The JSC sits as a quasi-judicial tribunal when considering removal of a judge. The petitioner raised threshold questions in her two responses, including that an appeal was pending and that the JSC could not review judicial decisions. The record did not show how the JSC addressed them. Such objections go to jurisdiction and, like a preliminary objection, ought to be determined first; review of that threshold decision belongs to the court, not a retrial of facts.
Whether the JSC may review the merits of a judicial decision
The JSC should avoid complaints which invite it to analyse a judgment or ruling to determine alleged incompetence; aggrieved parties should appeal or seek review, though judgments are not an entirely no-go zone for the JSC.
The court relied on the High Court decision in Mboya, quoting its adoption of Yusuf Gitau Abdalla: judges are fallible and the remedies are appeal and review. The Mbalu Mutava decision shows the JSC's preliminary inquiry is designed only to determine whether a prima facie ground for removal exists, not to conduct a merit review or a formal hearing.
Scope of judicial immunity under article 160(5)
A judge remains immune for acts done in good faith in lawful performance of a judicial function; only conduct acting mala fides or unlawfully may trigger JSC proceedings.
Relying on Bellevue Development Company Ltd v Gikonyo, the court held that a judge remains unquestionably immune as long as he does not intentionally and plainly prevent litigants from enjoying their constitutional and statutory rights. The duty of a judge is to recognise that his decisions may err and to ensure that orders affecting important rights can be reviewed or appealed in another court.
Legal principles established
#- A judge is immune from discipline over judicial decisions as long as the conduct does not deliberately prevent parties from enjoying their rights; error is cured by appeal or review.
- Where a judge before the JSC raises threshold jurisdictional or competency objections, the JSC must consider and decide those objections before proceeding with the substantive complaint; failure to do so violates fair administrative action under article 47.
- The decision of the JSC to admit a complaint against a judge for hearing is an administrative decision amenable to judicial review under article 47 and the Fair Administrative Action Act.
Court orders
#- 1.A declaration be and is hereby issued that the failure by the respondent to determine the threshold objections by the petitioner, amounts to violation of the right to fair administrative action guaranteed under article 47 of the Constitution of Kenya and the Fair Administrative Action Act
- 2.The respondent is directed to consider and decide the threshold legal questions raised by the petitioner
- 3.Each party to bear own costs
- Jurisdiction invoked
- Articles 25, 28, 41, 47, 50, 159(1), 160(5), 168 and 171(1) of the Constitution of Kenya (petition challenging JSC's mandate over a judge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wasilwa v Judicial Service Commission; Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers & 3 others (Interested Parties) (Petition E237 of 2023) [2025] KEELRC 281 (KLR)", Case Analysis (2025). Petition (number not stated in judgment; lodged 16 December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/281/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.