Shollei v Judicial Service Commission & 3 others (Petition 421 of 2013) [2013] KEHC 6008 (KLR) (Constitutional and Human Rights) (22 August 2013) (Ruling) Gladys Boss Shollei v Judicial Service Commission & 3 other [2013] eKLR Neutral citation: [2013] KEHC 6008 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) CONSTITUTIONAL AND HUMAN RIGHTS PETITION 421 OF 2013 DAS MAJANJA, J AUGUST 22, 2013 BETWEEN GLADYS BOSS SHOLLEI ....................................................................... PETITIONER AND JUDICIAL SERVICE COMMISSION ........................................... 1ST RESPONDENT HON. MS. EMILY OMINDE ........................................................ 2ND RESPONDENT AHMEDNASIR ABDULLAHI ..................................................... 3RD RESPONDENT WARSAME, JA ............................................................................... 4TH RESPONDENT Final orders cannot be granted in an ex parte application In the instant case, the petitioner sought final orders in an ex parte application. The court held that the prayers for an order of certiorari to temporarily quash the order of compulsory leave and a conservatory order reinstating the petitioner to office could not be granted as they were final orders and it would be proper to hear all the parties before making those orders. Reported by Kakai Toili Civil Practice and Procedure – conservatory orders – ex-parte conservatory orders – where a party sought both temporary and permanent ex-parte conservatory orders – whether the court could grant ex-parte conservatory orders whether they were either temporary or permanent in nature. Brief facts The matter had been brought by the Chief Registrar of the Judiciary contesting the decision of the Judicial Service Commission to send her on compulsory leave. She stated that the decision was a violation of her rights under the Constitution and also a contravention of the provisions of the Judicial Service Act, 2011. The instant application sought among other orders; that pending inter partes hearing an order of certiorari be issued https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6008/eng@2013-08-22 1
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to temporarily quash the respondents’ order of compulsory leave; and that pending inter partes hearing, a conservatory order reinstating the petitioner to office be issued. Issues i. Whether the court could grant final orders in an ex-parte application. Held 1. In an ex-parte application, the court had to act with caution as all the facts may not have been before it and in particular where orders of some finality were sought. 2. A conservatory order was intended to ensure that the rights and fundamental freedoms of the applicant were not rendered nugatory before the inter partes hearing. 3. The prayers for an order of certiorari to temporarily quash the order of compulsory leave and a conservatory order reinstating the petitioner to office could not be granted as they were final orders and it would be proper to hear all the parties before making those orders. 4. From the evidence before the court, a case had been made out for the court to issue orders to prohibit the Judicial Service Commission from taking disciplinary proceedings against the petitioner so that the matter could be ventilated in court. Application partly allowed. Orders i. 1st respondent restrained from commencing or continuing any disciplinary proceedings against the petitioner pending inter partes hearing of the application. ii. The notice of motion and petition were to be served forthwith. Citations None referred to Statutes East Africa 1.Judicial Service Act, 2011 (Act No 1 of 2011) –(Interpreted) RULING 1. This matter has been brought by the Chief Registrar of the Judiciary contesting the decision of the Judicial Service Commission to send her on compulsory leave on 19th August 2013. She states that this is a violation of her rights under the Constitution and also a contravention of the provisions of the Judicial Service Act, 2011. The Notice of Motion before me seeks, inter alia, the following orders: [2] That pending interparties hearing an order of certiorari do issue to temporarily quash the Respondents’ order of compulsory leave. [3]That pending interparties hearing, a conservatory order reinstating the petitioner to office as existing ante 19th August 2013. [4] That pending interparties hearing, an order of prohibition do issue to prohibit the Respondents from commencing the disciplinary proceedings against the petitioner. 2. As this is an ex-parte application, the Court acts with caution as all the facts may not be before it and in particular where orders of some finality are sought. However, a conservatory order is intended to ensure that the rights and fundamental freedoms of the applicant are not rendered nugatory before the inter partes hearing. https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6008/eng@2013-08-22 2
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3. In the circumstances, I decline to grant the prayer [2] and [3] of the Motion as these are final orders and it would be proper to hear all the parties before making those orders. However, from the material before the court, I am satisfied that case has been made out to prohibit the Judicial Service Commission from taking disciplinary proceedings against the petitioner so that the matter may be ventilated in court. 4. In the circumstances, I grant the following orders; 1) The 1st respondent is restrained by way of a conservatory order from commencing or continuing any disciplinary proceedings against the petitioner pending interparties hearing of the application on 27th August 2013. 2) The Notice of Motion and Petition shall be served forthwith. DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF AUGUST 2013. D.S. MAJANJA JUDGE Mr Kipkorir instructed by KTK Advocates for the petitioner ex-parte. https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/6008/eng@2013-08-22 3
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