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Supreme CourtDismissedPetition 29 of 2014

Judges and Magistrates Vetting Board v Kenya Magistrates and Judges Association & another

Supreme Court of Kenya
19 December 2014
Willy MutungaW. M. MutungaKalpana RawalK. H. RawalPhilip Kiptoo TunoiP. K. TunoiJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguN. S. Ndungu
10,827 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
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·~43 min to read original · ~4 min brief

The bottom line

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The Vetting Board can only judge judges based on conduct before the 2010 Constitution took effect.

What this practically means

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The Supreme Court ruled that the Judges and Magistrates Vetting Board can only investigate conduct that happened before August 27, 2010, when the new Constitution took effect. The Board cannot look at what judges did after that date. Any misconduct after that date must be handled by the Judicial Service Commission, not the Vetting Board. This keeps the two bodies separate and within their proper roles.

Executive summary

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This appeal by the Judges and Magistrates Vetting Board challenged the concurrent decisions of the High Court and Court of Appeal which held that the Board could not investigate judicial officers based on conduct occurring after the effective date of the Constitution (27th August 2010). The Supreme Court, by a 5-1 majority (with Njoki Ndungu SCJ dissenting), dismissed the appeal and upheld the lower courts' decisions. The Court first addressed jurisdiction, distinguishing its earlier decision in JMVB (I) which ousted court review of individual vetting decisions. It held that the present appeal raised a different question—the interpretation of the Board's mandate under Section 23 of the Sixth Schedule—which falls within the Supreme Court's appellate jurisdiction under Article 163(4)(a). On the merits, the Court held that the Board can only investigate conduct of judges and magistrates who were in office on the effective date based on alleged acts and omissions arising before that date, not after. The Court reasoned that vetting is a transitional, one-off process designed to determine suitability to transition from the old to the new constitutional order. Conduct after the effective date falls within the exclusive disciplinary mandate of the Judicial Service Commission. The Court emphasized that the Constitution envisages harmonious coexistence between the two institutions. The dissenting opinion argued that suitability is a holistic assessment not confined to a specific time period, and that Section 18 of the VJM Act does not impose a time limitation. The appeal was dismissed with costs to the appellant.

Questions the Court framed

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

  1. 1.whether this Court has jurisdiction to hear and determine this appeal in light of its Judgment in Judges and Magistrates Vetting Board and Others v. Center for Human Rights and Democracy and Others; Supreme Court Petition No. 13A, 14 and 15 of 2013
  2. 2.whether the Judges and Magistrates Vetting Board, in execution of its mandate as stipulated in Section 23 of the Sixth Schedule to the Constitution of 2010, can investigate the conduct of Judges and Magistrates who were in office on the effective date, on the basis of alleged acts and omissions arising after the effective date

Key legal issues

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01

Whether the Supreme Court has jurisdiction to hear this appeal given the ouster clause in Section 23(2) of the Sixth Schedule and the decision in JMVB (I).

Holding

The Supreme Court has jurisdiction because this appeal raises a different question—the scope of the Vetting Board's mandate—not a review of individual vetting decisions.

Reasoning

The Court distinguished JMVB (I), which held that no court can review the process or outcome of the Vetting Board's decisions. The present appeal concerns the interpretation of Section 23 of the Sixth Schedule and Section 18 of the VJM Act, which is a constitutional interpretation question falling under Article 163(4)(a). The Court found that declining jurisdiction would defeat the vetting process.

p. 12
02

Whether the Judges and Magistrates Vetting Board can investigate conduct of judicial officers occurring after the effective date (27th August 2010).

Holding

The Vetting Board cannot investigate conduct after the effective date; its mandate is limited to acts and omissions before that date.

Reasoning

The Court reasoned that Section 23(1) of the Sixth Schedule limits vetting to judges and magistrates 'who were in office on the effective date' and their suitability to continue serving. The transitional nature of vetting means it cannot be a continuous process. Conduct after the effective date falls under the JSC's disciplinary mandate. The Board cannot wait to act on future conduct; it must assess past conduct to determine suitability for transition.

p. 15
03

Whether the Vetting Board's consideration of post-effective date conduct would encroach on the JSC's disciplinary mandate.

Holding

The Constitution envisages a harmonious coexistence between the Vetting Board and JSC, with no overlap if each stays within its mandate.

Reasoning

The Court noted that the Constitution has in-built mechanisms ensuring coexistence: vetting is transitional and one-off, while JSC discipline is permanent. The Board should report post-effective date misconduct to the JSC. Hypothetical conflicts do not justify expanding the Board's mandate. The JSC handed over pre-effective date complaints to the Board, showing coordination.

p. 15

Legal principles established

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  • The Vetting Board's mandate is limited to acts and omissions before the effective date of the 2010 Constitution.
  • The Supreme Court can interpret the Constitution on the Board's mandate, even if it cannot review individual vetting decisions.
  • Vetting is a one-off transitional process, not an ongoing review of judicial conduct.
  • Post-effective date judicial misconduct falls under the Judicial Service Commission's disciplinary powers.
  • The Constitution ensures the Vetting Board and JSC can coexist without overlapping mandates.

Court orders

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  1. 1.The Petition dated 15th August 2014, is hereby disallowed.
  2. 2.The Judgment of the Court of Appeal dated 11 July 2014 is hereby upheld.
  3. 3.Costs of this appeal shall be borne by the appellant.

The bench

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

Willy Mutunga
majority

Wrote the judgment

Kalpana Rawal
majority
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
dissenting

Wrote the judgment

The dissenting opinion holds that the Vetting Board can consider conduct after the effective date because suitability is a holistic assessment not confined to a specific period, and Section 18 of the VJM Act does not impose a time limitation. The dissent argues that the majority's interpretation reverses JMVB (I), introduces potential review of Board processes, and infers unconstitutionality of Sections 18 and 19 of the VJM Act.

The bar to the admissibility of acts or omissions after the effective date by the Vetting Board is in my respectful view, a constitutional misinterpretation and the disruption of a sanctioned constitutional process.p. 24
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 93 of 2014
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Setting aside the High Court and Court of Appeal orders

The Supreme Court upheld the concurrent findings that the Vetting Board cannot investigate conduct after the effective date.

p. 24

Costs

Costs of this appeal shall be borne by the appellant.

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 find and hold that the Judges and Magistrates Vetting Board, in execution of its mandate as stipulated in Section 23 of the Sixth Schedule to the Constitution of 2010, can only investigate the conduct of Judges and Magistrates who were in office on the effective date on the basis of alleged acts and omissions arising before the effective date, and not after the effective date.
p. 15 Scope of Vetting Board's mandate
The Petition dated 15th August 2014, is hereby disallowed.
p. 24 Final orders
The Judgment of the Court of Appeal dated 11 July 2014 is hereby upheld.
p. 24 Final orders
Costs of this appeal shall be borne by the appellant.
p. 24 Costs order
We do not see how our decision in JMVB (1), which was responding to a different question, can deprive this Court of its jurisdiction to interpret and apply the Constitution, in conformity with Article 163 (4) (a) thereof.
p. 12 Jurisdiction of the Supreme Court
The Constitution has in-built mechanisms which have ensured a harmonious coexistence between the vetting process for Judges and Magistrates who were in office on the effective date (an exclusive mandate of the Board), and the disciplinary process for all judicial officers who were not in office on the effective date, including those who have already been vetted (an exclusive mandate of the JSC).
p. 15 Coexistence of Vetting Board and JSC

Key timeline

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2010-08-27
Effective date of the 2010 Constitution; Vetting Board's mandate begins for judges in office on this date.
2014-08-15
Vetting Board files petition challenging lower court rulings that limited its mandate to pre-effective date conduct.
2014-07-11
Court of Appeal upholds High Court decision that Board cannot investigate post-effective date conduct.
2014
Supreme Court dismisses Vetting Board's appeal, affirming the Court of Appeal judgment.

Practical implications

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For lawyers

Limit Board's evidence to pre-2010

When representing clients before the Vetting Board, ensure all evidence of judicial misconduct relates to acts or omissions before August 27, 2010. Any post-effective date conduct must be referred to the JSC. This ruling also confirms the Supreme Court's jurisdiction to interpret the Board's mandate, so appeals on scope questions remain viable.

For businesses

Know which body handles complaints

If you have a complaint about a judge's conduct that occurred after August 27, 2010, direct it to the Judicial Service Commission, not the Vetting Board. The Board only handles pre-2010 conduct. This clarity helps you choose the right channel and avoid delays in addressing judicial misconduct that may affect your cases.

For individuals

Report post-2010 misconduct to JSC

If you believe a judge acted improperly after 2010, file your complaint with the Judicial Service Commission. The Vetting Board cannot act on such complaints. This ruling ensures your report goes to the right authority, increasing the chance it will be investigated and addressed properly.

Frequently asked questions

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What is the Vetting Board's role in Kenya after this Supreme Court ruling?+

The Vetting Board can only assess judges and magistrates who were in office on August 27, 2010, based on their conduct before that date. It cannot investigate anything they did after that date. The Board's job is a one-time check to see if they should stay in the new system.

Can the Vetting Board investigate a judge for misconduct after 2010 in Kenya?+

No. The Supreme Court ruled that the Board's mandate is limited to conduct before the 2010 Constitution took effect. Any misconduct after that date must be reported to the Judicial Service Commission, which handles discipline for all judicial officers.

What happens to complaints about a judge's post-2010 conduct in Kenya?+

Such complaints go to the Judicial Service Commission (JSC), not the Vetting Board. The JSC has the power to discipline judges for misconduct that occurs after August 27, 2010. This keeps the two bodies separate and ensures proper handling of complaints.

Does this ruling affect the Vetting Board's ongoing work in Kenya?+

Yes. The Board must now focus only on pre-2010 conduct when vetting judges. It cannot consider any post-effective date actions. This may limit the evidence it can use and could affect how it assesses a judge's suitability to continue serving.

Later judgments citing this (7)

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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 v Kenya Magistrates and Judges Association & another", Case Analysis (2014). Petition 29 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/4/eng@2014-12-19

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