MMG v Tribunal Appointed to Investigate the Conduct of Hon. Justice MMG
The bottom line
#Supreme Court upheld removal of judge unable to perform duties due to mental incapacity.
What this practically means
#The Supreme Court dismissed an appeal by a judge who was found unable to perform her duties because of mental incapacity. The court confirmed that mental illness does not automatically mean incapacity. It must be proven that the illness affects the person's ability to do their job. The court also set a specific standard of proof for such cases: beyond reasonable doubt for the illness itself, and a slightly lower standard for proving inability to work.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Tribunal acted within its jurisdiction to make the findings contained in its report
- 2.Whether the petitioner’s mental incapacity was established
- 3.Whether mental incapacity rendered the petitioner unable to perform the functions of the office of a judge of the ELC
Key legal issues
#Whether the Tribunal acted within its jurisdiction
The Tribunal acted within its jurisdiction under Article 168(1)(a) of the Constitution.
The Tribunal's mandate was to inquire into whether the petitioner was unable to perform judicial functions due to mental incapacity. The Tribunal's report shows an in-depth inquiry into whether the petitioner's mental illness led to mental incapacity and inability to perform her functions. All conclusions and findings were geared toward establishing this ground. The Tribunal confined itself to matters in the petition submitted to the President by the JSC and did not consider extraneous issues.
Whether mental incapacity was established
The Tribunal correctly found that the petitioner's mental illness (schizophrenia) caused mental incapacity.
The petitioner admitted to being diagnosed with schizophrenia in 2008. Medical evidence from three psychiatrists confirmed the diagnosis. The Tribunal considered the nature of the illness, its severity, progression, treatment history, and the fact that the petitioner was on Clozapine, a third-line drug for treatment-resistant schizophrenia. The Tribunal did not equate mental illness to mental incapacity but found that the severity of the illness affected her mental capacity. The court affirmed this finding based on its evaluation of the evidence.
Whether mental incapacity rendered the petitioner unable to perform the functions of a judge of the ELC
The mental incapacity rendered the petitioner unable to perform the functions of a judge of the ELC.
The court considered the functions of an ELC judge under the Environment and Land Court Act, including hearing and determining complex disputes. Evidence showed the petitioner's performance was affected by absenteeism due to her mental illness, with numerous complaints about delays in judgments and rulings. The side effects of her medication (drowsiness, lethargy, tiredness) impacted her concentration and alertness. The court found no reason to interfere with the Tribunal's conclusion that she was unable to perform her functions.
Legal principles established
#- Mental incapacity includes inability to decide, understand, remember, use information, or communicate a decision.
- A two-stage test applies: first, proof of an illness affecting the brain or mind; second, that the illness prevents performing duties to the required standard.
- Standard of proof for mental illness in removal proceedings is beyond reasonable doubt; for inability to perform duties, it is below beyond reasonable doubt but above a balance of probabilities.
- Mental illness does not automatically equal mental incapacity; each case requires specific evidence.
- A tribunal acting under Article 168(1)(a) of the Constitution must confine itself to the ground of removal stated in the petition.
- Medical evidence from qualified professionals is essential to establish mental incapacity.
Court orders
#- 1.The petition of appeal dated May 19, 2022 is hereby dismissed.
- 2.The Tribunal’s finding that the petitioner was unable to perform the functions of her office due to mental incapacity is affirmed.
- 3.The Tribunal’s recommendation to the President for the petitioner’s removal from office under article 168(1)(a) of the Constitution is affirmed.
- 4.No orders as to costs.
- 5.We hereby direct that the sum of Kshs. 6000/- deposited as security for costs in the appeal be refunded to the petitioner.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Tribunal appointed under Article 168(5) of the Constitution
- Gazette Notice No 8625 of 2021
- Jurisdiction invoked
- Article 163(3) and (8) of the Constitution; Article 168(8) of the Constitution
Relief refused
#Setting aside the Tribunal's report and recommendation
The Tribunal duly established the ground for removal due to inability to perform functions of the office arising from mental incapacity.
Costs
No orders as to 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.
The petition of appeal dated May 19, 2022 is hereby dismissed.
The Tribunal’s finding that the petitioner was unable to perform the functions of her office due to mental incapacity is affirmed.
The Tribunal’s recommendation to the President for the petitioner’s removal from office under article 168(1)(a) of the Constitution is affirmed.
No orders as to costs.
Mental incapacity includes but is not limited to a person’s inability to make a decision, understand information about a decision, remember information, use the information to make a decision, or communicate a decision.
Firstly, there must be proof that a person has an illness or injury that affects the manner in which the brain or mind works. Secondly, that the illness or injury affects the person to the extent that they are unable to perform their duties to the requisite standard.
We affirm the requisite standard of proof as that applied by the Tribunal, ‘below beyond reasonable doubt but higher than a balance of probabilities’, in addressing the issue at hand.
Key timeline
#Practical implications
#New standard of proof for mental incapacity cases
When challenging or defending removal proceedings under Article 168(1)(a), you must now apply a two-stage test and a graduated standard of proof. For the mental illness itself, the standard is beyond reasonable doubt. For the resulting inability to perform duties, the standard is lower—below beyond reasonable doubt but above a balance of probabilities. Prepare evidence accordingly, including expert psychiatric testimony.
Mental health policies for senior staff
This case clarifies that mental illness alone does not justify removal from a senior role. Employers must show that the illness actually impairs the employee's ability to perform core duties. For roles with high responsibility, such as judges or executives, document specific performance issues linked to the condition and obtain qualified medical assessments. The two-stage test can guide internal disciplinary or incapacity procedures.
Your rights when facing mental incapacity claims
If your employer or a tribunal claims you are unable to work due to mental incapacity, you have the right to a rigorous process. The court requires proof that you have a diagnosed mental illness and that it prevents you from doing your job. You can challenge the evidence, especially if the illness is managed or does not affect your performance. The standard of proof is high for the illness itself, so demand expert medical evidence.
Frequently asked questions
#What is the standard of proof for mental incapacity in Kenya?+
In removal proceedings for judges, the standard is beyond reasonable doubt for proving mental illness. For proving that the illness makes the judge unable to perform duties, the standard is below beyond reasonable doubt but above a balance of probabilities.
Can a judge be removed for mental illness in Kenya?+
Yes, but only if the mental illness causes mental incapacity that prevents the judge from performing their duties. The Supreme Court in Justice MMG v JSC confirmed that mental illness alone is not enough; there must be proof of incapacity affecting job performance.
What is the two-stage test for mental incapacity in Kenyan law?+
First, there must be proof that the person has an illness or injury affecting the brain or mind. Second, that the illness or injury affects the person to the extent they are unable to perform their duties to the required standard. This test was established in Justice MMG v JSC.
What happened in Justice MMG v Judicial Service Commission?+
The Supreme Court dismissed an appeal by a judge who was found unable to perform her duties due to mental incapacity from schizophrenia. The court affirmed the tribunal's recommendation for her removal, setting guidelines on how mental incapacity should be proved in such cases.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Malakwen (Suing as the Legal Representative of the Late Raphael Kiptoo Beibei) v Engairo & 3 others (Environment and Land Case 102 of 2018) [2025] KEELC 6110 (KLR)[2025] KEELC 6110 (KLR)17 Sept 2025applied
- Chief of Kenya Defence Forces & another v Etyang (Civil Appeal E001 of 2024) [2025] KECA 1409 (KLR)[2025] KECA 1409 (KLR)31 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "MMG v Tribunal Appointed to Investigate the Conduct of Hon. Justice MMG", Case Analysis (2023). Petition 10 (E013) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/73/eng@2023-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.