Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
IndustrialDismissedPetition dated 31st October, 2013 (Industrial Court at Nairobi)· [2013] KEIC 1 (KLR)

Gladys Boss Shollei v Judicial Service Commission (Petition 39 of 2013) (Employment and Labour) [2013] KEIC 1 (KLR)

Industrial Court of Kenya
22 November 2013
7,659 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court refused to reinstate Gladys Shollei as Chief Registrar, ruling that public offices cannot be left vacant while her case awaited a full hearing.

What this practically means

#

Executive summary

#
The Applicant, formerly Chief Registrar of the Judiciary under Article 161(2)(c) of the Constitution, petitioned the Judicial Service Commission seeking certiorari to quash her removal letter and the proceedings of 18 October 2013, mandamus, prohibition, declarations that her rights were violated and that the Judicial Service Act is void to the extent of inconsistency, compensation, and costs. Simultaneously she sought interlocutory conservatory orders reinstating her to office and restraining the filling of the CRJ position pending trial. The matter was transferred from the High Court by consent under Article 162(2) as read with Section 12 of the Industrial Court Act, 2011. The Applicant argued the JSC lacked jurisdiction over a constitutional office, acted on bias through a 'war council' evidenced by emails, and denied her a fair hearing contrary to Articles 47 and 50. The Respondent maintained the CRJ is a judicial officer answerable to the JSC and that due process was followed. Applying the settled interlocutory tests from Mary Aliviza (prima facie case, irreparable harm, balance of convenience), the court found a prima facie case of apparent bias and breach of natural justice - the Respondent having made no response to the 'war council' allegations - but held that reinstatement is ordinarily a substantive remedy, damages or reinstatement within three years remained available, and it was in the public interest that the office of CRJ not remain vacant. The application was dismissed with costs in the cause.

Key legal issues

#
01

Prima facie case at the interlocutory stage

Holding

The Applicant established a prima facie case of apparent bias and breach of natural justice against the JSC

Reasoning

The Respondent did not respond to the extensive allegations of a 'war council' and bias by named Commissioners, including deliberations at Mombasa in the Applicant's absence. The court applied the Mrao definition of a prima facie case and found an arguable case of personal interest and connivance, satisfying the first interlocutory threshold, without deciding the merits.

p. 16
02

Irreparable harm not compensable by damages

Holding

The Applicant failed to demonstrate irreparable harm

Reasoning

Reinstatement is available under Section 12(3)(vii) of the Industrial Court Act within three years of dismissal, and the petition itself sought certiorari, mandamus and compensation rather than reinstatement as specifically pleaded. The court relied on the EACJ's reasoning that a process once completed can be undone with minimum injury, so damages remain an adequate alternative remedy.

p. 19
03

Balance of convenience

Holding

The balance of convenience favours refusal of the interim orders because the office of CRJ should not remain vacant

Reasoning

The Chief Registrar heads Judiciary administration and accounting functions. It is in the public interest that the office remains filled, and an Acting CRJ was in place. Stopping the recruitment would occasion more injury if the Respondent ultimately succeeded, whereas any wrong could be undone on a finding for the Applicant.

p. 19
04

Applicability of natural justice to disciplinary proceedings by an employer

Holding

The rules of natural justice (nemo judex in causa sua and audi alteram partem) arguably apply to disciplinary proceedings, and bias may be raised against a commission conducting discipline

Reasoning

Relying on Ridge v. Baldwin, the court noted the House of Lords held dismissal without observing natural justice null and void. The Respondent's argument that bias could only be raised against courts of law was not sustained; an arguable case of apparent bias by Commissioners was disclosed, giving rise to a prima facie case though untested at that stage.

p. 16

Legal principles established

#
  • Reinstatement is ordinarily a substantive remedy granted after full hearing, though it may be granted in exceptional circumstances under Section 49 of the Employment Act
  • Where an interim mandatory order is sought, the court must consider whether the remedy sought can adequately be achieved after hearing, and whether stopping the process would occasion greater injury

Court orders

#
  1. 1.The Notice of Motion dated 31st October, 2013 seeking interim reinstatement and preservation of the office of Chief Registrar is not allowed
  2. 2.Costs will be in the cause
Jurisdiction invoked
Article 162(2) of the Constitution as read with Section 12 of the Industrial Court Act, 2011 (matter transferred from the High Court by consent)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Gladys Boss Shollei v Judicial Service Commission (Petition 39 of 2013)  (Employment and Labour) [2013] KEIC 1 (KLR)", Case Analysis (2013). Petition dated 31st October, 2013 (Industrial Court at Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2013/1/eng@2013-11-22

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