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Supreme CourtAllowedPetition 13A, 14 & 15 of 2013 (Consolidated)

Judges and Magistrates Vetting Board & 2 others v Centre for Human Rights and Democracy & 11 others

Supreme Court of Kenya
5 November 2014
Willy MutungaW. M. MutungaKalpana RawalK. H. RawalPhilip Kiptoo TunoiP. K. TunoiJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguN. S. Ndungu
28,920 words in judgment
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·~116 min to read original · ~4 min brief

The bottom line

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Supreme Court: no court can review the Judges and Magistrates Vetting Board's decisions.

What this practically means

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The Supreme Court ruled that the Judges and Magistrates Vetting Board's decisions on whether a judge or magistrate should stay in office are final. No court in Kenya can question or review them. This was part of the constitutional transition to restore public confidence in the judiciary. The High Court's general powers do not override this clear constitutional rule.

Executive summary

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This consolidated appeal arose from a challenge to the jurisdiction of the High Court to review decisions of the Judges and Magistrates Vetting Board, established under Section 23 of the Sixth Schedule to the Constitution of Kenya, 2010 and the Vetting of Judges and Magistrates Act. The High Court had held that it retained supervisory jurisdiction over the Board, and the Court of Appeal by a majority affirmed that decision, with Murgor and Sichale JJA dissenting. The Supreme Court allowed the appeal, reversing the decisions of the lower courts. The central issue was whether Section 23(2) of the Sixth Schedule, which provides that a removal or process leading to removal of a judge by virtue of the vetting legislation 'shall not be subject to question in, or review by, any court,' ousts the High Court's supervisory jurisdiction under Article 165(6) of the Constitution. The Supreme Court held that the ouster clause is a valid constitutional provision that effectively reserves to the Vetting Board the exclusive mandate to determine the suitability of judges and magistrates to continue in service. The Court emphasized the unique historical context of Kenya's constitutional transition, where the vetting process was a people-driven mechanism to restore public confidence in the Judiciary. The Court distinguished foreign jurisprudence, particularly Anisminic, noting that the ouster clause here is constitutional, not statutory, and arises from a transitional context where the Judiciary itself was the subject of reform. The Court held that none of the Superior Courts has jurisdiction to review the process or outcome of the Vetting Board's operations. The Court discharged the conservatory orders that had stopped the de-gazettement of judges found unsuitable, and directed that pending matters be disposed of in accordance with this judgment. The parties were ordered to bear their own costs.

Questions the Court framed

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

  1. 1.whether Section 23(2) of the Sixth Schedule to the Constitution and Section 22(4) of the Vetting of the Judges and Magistrates Act oust the jurisdiction of the High Court to review the decision of the Judges and Magistrates Board
  2. 2.whether the learned Judges of the Appellate Court erred in law, regarding the supervisory jurisdiction conferred upon the High Court under Article 165 of the Constitution, over the JMVB

Key legal issues

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01

Whether Section 23(2) of the Sixth Schedule to the Constitution ousts the High Court's supervisory jurisdiction to review decisions of the Judges and Magistrates Vetting Board.

Holding

The ouster clause in Section 23(2) of the Sixth Schedule effectively ousts the jurisdiction of the High Court and all Superior Courts to review the process or outcome of the Vetting Board's decisions regarding the suitability of a Judge or Magistrate to continue in service.

Reasoning

The Supreme Court held that the ouster clause is a valid constitutional provision rooted in the unique historical context of Kenya's transition to a new constitutional order. The vetting process was a transitional mechanism demanded by the Kenyan people to restore public confidence in the Judiciary. The Court found that the High Court's general supervisory powers under Article 165(6) and its mandate to enforce fundamental rights do not override the clear and unambiguous language of Section 23(2), which reserves to the Vetting Board the exclusive mandate to determine suitability. The Court distinguished the Anisminic line of cases, noting that the ouster clause here is constitutional, not statutory, and arises from a unique transitional context where the Judiciary itself was the subject of reform. The Court emphasized that the Constitution must be interpreted holistically, and that transitional provisions, though temporary, are part of the Constitution and must be given effect.

p. 45
02

Whether the Vetting Board is an inferior tribunal amenable to the supervisory jurisdiction of the High Court under Article 165(6) of the Constitution.

Holding

The Vetting Board is a sui generis quasi-judicial organ with a precise mandate, time-frame, and distinct legislative framework, and is not an inferior tribunal subject to the High Court's supervisory jurisdiction under Article 165(6) in respect of its core mandate of determining suitability.

Reasoning

The Supreme Court adopted the reasoning of Otieno-Odek JA that the Vetting Board is neither a Superior Court nor a subordinate court, but a unique transitional institution. The Court noted that the Board's mandate is exclusive and sui generis, and that its decisions on suitability are not subject to review by any court by virtue of the constitutional ouster clause. The Court distinguished between the Board's core mandate (determining suitability) and any potential ultra vires acts, but held that even the core mandate is insulated from judicial review by the clear terms of Section 23(2).

p. 23

Legal principles established

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  • The High Court's supervisory jurisdiction does not override the constitutional ouster clause in Section 23(2) of the Sixth Schedule.
  • The Vetting Board has exclusive mandate to determine suitability of judges and magistrates in service at the 2010 Constitution's promulgation.
  • No superior court can review the Board's process or outcome regarding suitability.
  • The ouster clause is valid because it is constitutional, not statutory, and arises from a unique transitional context.
  • The Vetting Board is a sui generis quasi-judicial organ, not an inferior tribunal subject to High Court supervision.

Court orders

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  1. 1.The Petition before this Court is hereby allowed.
  2. 2.The Orders of 30th October, 2010 stopping the de-gazettement of Judges or Magistrates found unsuitable to continue in service are hereby discharged.
  3. 3.The respective Superior Court Divisions or stations having to adjudicate upon matters of any of the following categories shall list them for mention within 15 days of the date hereof, and shall dispose of them forthwith, in accordance with the terms of this Judgment and these Orders, that is to say: (i) alleged lack of jurisdiction or merit on the part of the Vetting Board; (ii) alleged want of exclusive competence of the Vetting Board to determine the suitability of a Judge or Magistrate to continue in service; (iii) any contest to the Vetting Board's process (or outcome thereof) for determining the suitability of a Judge or Magistrate to continue in service.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Willy Mutunga
majority

Wrote the judgment

Concurring with the majority and final orders, expounding on the jurisprudential route of the two dissenting Judges at the Court of Appeal and reinforcing this Court's mainstreamed theory of constitutional interpretation.

I concur with the opinion of the majority and the final orders. I further write separately to expound on the jurisprudential route of the two dissenting Judges at the Court of Appeal, and to reinforce this Court's mainstreamed theory of constitutional interpretation.p. 45
Kalpana Rawal
majority

Wrote the judgment

Concurring with the majority, elaborating on the constitutional interpretation of the normative, prescriptive nature of Section 23 of the Sixth Schedule vis-à-vis the institutional, transitional requirements under the Constitution.

I concur entirely with the decision of the majority, but write separately to elaborate the constitutional interpretation of the normative, prescriptive nature of Section 23 of the Sixth Schedule to the Constitution, vis-à-vis the institutional, transitional requirements under the Constitution.p. 48
Philip Kiptoo Tunoi
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. S. NdunguSCJ
Currently serving
majority

Wrote the judgment

Concurring with the majority, placing the conceptualization and purpose of the vetting process in context from the basis of a constitutional drafter and a member of the Committee of Experts.

I concur with the Judgement of the majority but write separately to place the conceptualization and purpose of the vetting process in context from the basis of a constitutional drafter and a member of the Committee of Experts.p. 51
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 123 of 2012 (consolidated)
Jurisdiction invoked
Article 163(4)(a) of the Constitution of Kenya, 2010
Consolidated with
Petition No. 14 of 2013, Petition No. 15 of 2013

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.

We would clarify that by the terms of the Constitution itself, the High Court's general supervisory powers over quasi-judicial agencies, and its mandate in the safeguarding of the fundamental rights and freedoms of the Constitution, by no means qualify the ouster clause which reserves to the Judges and Magistrates Vetting Board the exclusive mandate of determining the suitability of a Judge or Magistrate in service as at the date of promulgation of the Constitution, to continue in service.
p. 45 Ouster clause and supervisory jurisdiction
For the avoidance of doubt, and in the terms of Section 23(2) of the Sixth Schedule to the Constitution, it is our finding that none of the Superior Courts has the jurisdiction to review the process or outcome attendant upon the operation of the Judges and Magistrates Vetting Board by virtue of the Constitution, and the Vetting of Judges and Magistrates Act.
p. 45 Finality of Vetting Board decisions
The parties shall bear their own respective costs.
p. 54 Costs order

Key timeline

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2010-08-27
New Constitution of Kenya promulgated, establishing the Judges and Magistrates Vetting Board.
2010-10-30
High Court issues orders stopping de-gazettement of judges found unsuitable by the Vetting Board.
2014
Supreme Court allows appeal, reverses lower courts, and discharges orders, affirming no court can review Vetting Board decisions.

Practical implications

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For lawyers

No judicial review of vetting decisions

Lawyers must advise clients that the Vetting Board's decisions on judge suitability are final and not subject to any court challenge. This includes both the process and outcome. Any attempt to seek review in the High Court or Court of Appeal will be struck out. The only possible avenue is if the Board acts ultra vires its mandate in a way unrelated to suitability, but the core determination is insulated.

For businesses

Impact on judiciary reform

Businesses relying on an independent judiciary should note that the vetting process was a one-time transitional measure to restore public confidence. The ouster of court review makes the vetting final, which has stabilized the judiciary. This predictability benefits the rule of law and business environment, though the decision limits future legal challenges to judicial appointments.

For individuals

No court appeal for vetting

Individual citizens or judges cannot challenge a Vetting Board decision in court. If a judge is removed after vetting, there is no legal remedy through the courts. The only recourse may be political or through other constitutional mechanisms, but not judicial review. This was intended to ensure a clean break from the past judiciary.

Frequently asked questions

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Can the High Court review a decision of the Judges and Magistrates Vetting Board in Kenya?+

No. The Supreme Court ruled that the constitutional ouster clause in Section 23(2) of the Sixth Schedule prevents any court from reviewing the Board's decisions on whether a judge or magistrate should continue in service.

What is the Judges and Magistrates Vetting Board in Kenya?+

It was a temporary body set up under the 2010 Constitution to vet judges and magistrates who were in office at the time of the new Constitution, to ensure they were fit to continue serving.

Is the Vetting Board's decision final in Kenya?+

Yes. The Supreme Court confirmed that the Board's determination of suitability is exclusive and final, and cannot be questioned or reviewed by any court.

What does the ouster clause in the Kenyan Constitution mean for judges?+

The ouster clause means that judges who were vetted and found unsuitable cannot challenge the decision in court. The clause was intended to facilitate a clean break from the old judiciary.

Later judgments citing this (25)

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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, "Judges and Magistrates Vetting Board & 2 others v Centre for Human Rights and Democracy & 11 others", Case Analysis (2014). Petition 13A, 14 & 15 of 2013 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/9/eng@2014-11-05

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