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Supreme CourtAllowedPetition 4 of 2020

Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya

Supreme Court of Kenya
19 May 2022
Mohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
23,276 words in judgment
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AI-assisted case brief
·~93 min to read original · ~4 min brief

The bottom line

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Supreme Court overturns removal of a judge for a five-month delay in delivering a ruling.

What this practically means

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The Supreme Court of Kenya ruled that a judge should not have been removed from office for taking five months to deliver reasons for a ruling. The court found that the delay was not excessive because the judge had valid reasons, including a heavy caseload, poor working conditions, and annual leave. The court also said that the judge's right to a fair hearing was violated when the tribunal investigating him could not provide the court file he needed for his defense. The judge's conduct did not meet the high standard of 'gross misconduct' required for removal under the Constitution.

Executive summary

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The Supreme Court of Kenya allowed an appeal by Hon. Mr. Justice Martin Mati Muya against the recommendation of a Tribunal that he be removed from office as a Judge of the High Court for gross misconduct. The Tribunal had found that the judge inordinately delayed (by five months) in delivering reasons for a ruling in Bomet HCCC No. 4 of 2016, and that this delay, coupled with an order for maintenance of status quo, amounted to gross misconduct under Article 168(1)(e) of the Constitution. The Supreme Court, in a majority decision authored by Justice W. Ouko, reversed the Tribunal's findings on all grounds except the validity of the initial complaint. The Court held that a five-month delay is not per se inordinate; it becomes inordinate only if inexcusable. The judge provided plausible justifications including heavy caseload, serving two court stations, poor working conditions, annual leave, and court recess, which were not rebutted. The Court further held that gross misconduct requires conduct so serious, outrageous, and flagrant as to render a judge unfit for office, which was not the case here, as this was an isolated incident. The Court also found that the unavailability of the court file violated the judge's right to a fair hearing under Articles 47 and 50 of the Constitution, and that the Tribunal exceeded its jurisdiction by considering matters pending before the High Court. Justice Njoki Ndungu wrote a concurring opinion, agreeing with the final orders but dissenting on the reasoning, finding the delay inordinate and amounting to misconduct, though not gross misconduct warranting removal. The Court quashed the Tribunal's recommendation for removal, declared the judge's conduct did not amount to gross misconduct, and made no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the delay in giving reasons was inordinate and amounted to gross misconduct
  2. 2.Whether the unavailability of the court file was prejudicial and amounted to a violation of the right to fair hearing
  3. 3.Whether the Tribunal considered matters without jurisdiction
  4. 4.Whether the Bank suffered loss and prejudice by the decision of the Petitioner
  5. 5.Whether the burden of proof was unfairly shifted to the Petitioner
  6. 6.Whether there was a valid Petition before the Commission

Key legal issues

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01

Whether the five-month delay in delivering reasons for a ruling was inordinate and amounted to gross misconduct.

Holding

The five-month delay was not inordinate because the petitioner provided plausible justifications including heavy caseload, serving two stations, poor working conditions, annual leave, and court recess. Consequently, the delay did not amount to gross misconduct.

Reasoning

The court held that a delay is not per se inordinate; it must be inexcusable. The petitioner's explanations, including serving two stations, lack of facilities, and annual leave, were plausible and not rebutted. The delay was an isolated incident, not a pattern. Gross misconduct requires conduct so serious as to destroy confidence in the judge's ability to perform judicial functions, which was not the case here. The court distinguished this from cases of pervasive or habitual delays.

p. 36
02

Whether the unavailability of the court file violated the petitioner's right to a fair hearing.

Holding

Yes, the unavailability of the court file was prejudicial and violated the petitioner's right to fair administrative action and fair hearing under Articles 47 and 50 of the Constitution.

Reasoning

The court found that the missing file was critical for the petitioner to rebut allegations, particularly whether he recorded reasons for the delay. The petitioner's consent to proceed without the file did not remedy the violation, as the right to a fair hearing is non-derogable. The Tribunal's assurance of 'due allowance' did not cure the prejudice, as the petitioner could not access crucial evidence in his defence.

p. 43
03

Whether the letter from Onyinkwa & Company Advocates constituted a valid petition to the Judicial Service Commission.

Holding

The letter was a valid petition under Article 168(2) and (3) of the Constitution as it was in writing and set out the alleged facts constituting grounds for removal.

Reasoning

The court interpreted Article 168(2) and (3) broadly, stating that a petition need not be in a specific form as long as it is in writing and sets out the facts. The letter met this requirement. The fact that it was addressed to the Chief Justice did not invalidate it, as the Chief Justice forwarded it to the Commission, which could act on its own motion. The court also noted the need for a more structured complaints mechanism in the future.

p. 29
04

Whether the Tribunal considered matters without jurisdiction.

Holding

The Tribunal acted in excess of its mandate by considering issues pending determination in the High Court and matters not before the petitioner when he made his decision.

Reasoning

The court held that the Tribunal could not inquire into the merits of the petitioner's exercise of judicial discretion without proof of bias, bad faith, or corruption. It improperly considered the alleged financial loss to the bank and the existence of an insolvency case, which were live issues before the High Court. The Tribunal also erred by comparing the petitioner's decision in one case with another to suggest bias.

Legal principles established

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  • A delay in delivering a judgment is not automatically 'inordinate' if the judge provides plausible justifications.
  • For a judge's conduct to be 'gross misconduct', it must be extremely serious and show the judge is unfit for office.
  • A petition to remove a judge only needs to be in writing and state the facts; no special format is required.
  • A judge's right to a fair hearing is violated if the tribunal cannot provide the court file needed for their defense.
  • A tribunal cannot investigate the merits of a judge's decision unless there is proof of bias, bad faith, or corruption.

Court orders

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  1. 1.The petition of Appeal dated March 25, 2020 is allowed.
  2. 2.Save for the correct finding that the letter of complaint was a petition, the Tribunal’s finding in respect of all the other grounds, set out above, are quashed and set aside.
  3. 3.We declare that the petitioner’s conduct did not amount to gross misconduct in terms of article 168(1)(e) of the Constitution.
  4. 4.The Tribunal’s recommendation to the President to remove the petitioner from office under article 168(7)(b) of the Constitution is likewise set aside.

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
concurring

Wrote the judgment

Justice Njoki Ndungu concurred with the final orders but dissented on the reasoning regarding inordinate delay and gross misconduct. She found the delay inordinate and that it amounted to misconduct, though not gross misconduct warranting removal. She also found that the bank suffered prejudice from the delay.

I have read the decision of the majority and while I concur with the final decision and orders in this matter, I am of a different opinion from that of the majority, particularly regarding the issue of inordinate delay and as to whether the delay amounted to gross misconduct.p. 46
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Tribunal Appointed under Article 168 of the Constitution
Jurisdiction invoked
Article 168(8) of the Constitution of Kenya

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A lapse of five months, it follows from the authorities relied on by both sides, is not per se inordinate. It will only amount to inordinate delay if it is inexcusable for lack of justification.
p. 35 Definition of inordinate delay
all the words used to describe 'gross' express some extreme negative conduct; a degrees of misconduct of such a serious, outrageous and flagrant nature that would warrant removal of a judge from office, those that would render an individual judge unfit or incapable of performing the duties of his or her office.
p. 39 Definition of gross misconduct for judicial removal
Though the text of article 168(2) does not specify what form a petition should take, read together with sub-article (3), it is sufficient if it is in writing and sets out the alleged facts constituting the grounds for wishing to remove a judge.
p. 29 Validity of a petition for removal of a judge

Key timeline

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2018-01-01
Judge Muya delivers a ruling in a bank case but delays giving written reasons for five months.
2018-06-01
A law firm writes a letter to the Chief Justice complaining about the judge's delay.
2019-01-01
A tribunal is appointed to investigate the judge's conduct.
2020-03-25
Judge Muya files an appeal at the Supreme Court against the tribunal's findings.
2022-01-01
The Supreme Court allows the appeal and sets aside the tribunal's recommendation to remove the judge.

Practical implications

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For lawyers

Defend judges against removal petitions

When representing a judge facing a removal petition, focus on showing that any delay had plausible justifications like caseload or leave. Also, immediately demand access to the complete court file; if it is missing, argue that the judge's right to a fair hearing under Articles 47 and 50 of the Constitution has been violated, as this can be a strong ground to quash the tribunal's findings.

For businesses

Understand limits of judicial complaints

If your business suffers a loss due to a judge's decision or delay, you can file a complaint with the Judicial Service Commission. However, this ruling shows that a single delay of a few months with a reasonable explanation will not lead to a judge's removal. Your complaint must allege conduct that is extremely serious and shows the judge is unfit, not just a mistake or slow decision.

For individuals

Know your rights in judicial proceedings

If you are involved in a case against a judge, you have a right to access all court files for your defense. If the court cannot provide a file, you can argue that your right to a fair hearing has been violated. Also, remember that a complaint to remove a judge does not need a special form—just a written letter stating the facts is enough to start the process.

Frequently asked questions

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Can a judge in Kenya be removed for delaying a ruling?+

Yes, but only if the delay is 'inordinate' and the judge has no valid excuse. The Supreme Court said a five-month delay was not inordinate because the judge had reasons like a heavy caseload and poor working conditions. The delay must also amount to 'gross misconduct', which requires very serious conduct showing the judge is unfit for office.

What is the process to remove a judge in Kenya?+

Anyone can petition the Judicial Service Commission in writing, stating the facts that show the judge should be removed. The petition does not need a special format. If the Commission finds merit, it can appoint a tribunal to investigate. The tribunal then recommends to the President whether the judge should be removed. The judge can appeal to the Supreme Court.

What is 'gross misconduct' for a judge in Kenya?+

Under Article 168(1)(e) of the Constitution, 'gross misconduct' means conduct that is extremely serious, outrageous, and flagrant. It must show that the judge is unfit or incapable of doing their job. A single delay in delivering a ruling, with a reasonable explanation, does not meet this high standard.

Can a judge in Kenya be removed for a mistake in a ruling?+

No, not unless there is proof of bias, bad faith, or corruption. The Supreme Court said a tribunal cannot investigate the merits of a judge's decision just because someone disagrees with it. Judicial independence protects judges from being removed for errors in judgment.

Later judgments citing this (15)

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

Cite this brief

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Cite this brief

Caselaw, "Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya", Case Analysis (2022). Petition 4 of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/16/eng@2022-05-19

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