Ombija v Judges and Magistrates Vetting Board (Civil Appeal 281 of 2015) [2015] KECA 129 (KLR)
The bottom line
#Kenya's Court of Appeal ruled the Vetting Board could not re-vet a judge it had already found suitable, restoring Justice Ombija's suitability determination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant was vetted on 10th September 2012
- 2.If so, whether the determination was a tie on a vote of 4 to 4
- 3.If the answers to (1) and (2) are in the affirmative, what the legal implication is on the power of the Vetting Board in relation to the decisions it made on 21.12.2012 and 20.3.2013, i.e. whether there was validity in those decisions
- 4.Whether the High Court had power to entertain and determine the question whether it had jurisdiction to hear and determine the petition
- 5.If the answer to (1) is in the affirmative, what decision the court should have rendered in the face of the material before it and the law obtaining
Key legal issues
#Whether the High Court had jurisdiction to entertain a petition challenging the Vetting Board's power to re-vet
The High Court had jurisdiction; the ouster clause did not apply because the petition challenged the Vetting Board's excess of powers, not a removal or process leading to removal.
The Court held the petition did not require the court to deal with any issue of removal or a process leading to removal, but rather whether the Vetting Board had power under the law to re-vet. The insulation in Section 23(2) of the Sixth Schedule applies only where the Board acts within the Constitution and the Vetting Act. If the Board acts outside the amplitude of its powers, the insulation cannot hold, and a judge or magistrate may access the court. This position is consistent with the Supreme Court's distinction between JMVB-1 and JMVB-2.
Whether the appellant was vetted on 10th September 2012 with a 4-4 tie
Yes; the Vetting Board's failure to controvert the appellant's sworn allegations on the 10th September 2012 vetting and determination amounted to an implicit admission, and illegally obtained Board minutes were admissible as relevant evidence.
The replying affidavit by the Board's Chief Executive did not deny the vetting, the 4-4 tie, or the Koome precedent; it only complained that the minutes were not officially released. Under Order 2 Rule 11 of the Civil Procedure Rules, untraversed allegations are deemed admitted, and under Karuma common law principles relevant evidence is admissible however obtained. The Court accordingly found the vetting and the tie proved, and that the Board should have declared the appellant suitable as it did for Justice Koome in identical circumstances.
Whether the determinations of 21st December 2012 and 20th March 2013 were valid
They were invalid for want of jurisdiction; the Vetting Act confers no power to re-vet or to rescind a decision of suitability.
The Board's powers are limited to determination of suitability or unsuitability and review of unsuitability, with the review decision final under Section 22(3). Having vetted the appellant with a tie vote on 10th September 2012 which should have resulted in a determination of suitability consistent with the Koome precedent, the Board had no power to change suitability to unsuitability, to re-vet, or to nullify its own proceedings and direct a fresh panel. A tie determination of suitability not publicly announced was valid because the Act requires publicity only for removal decisions.
Whether the Court of Appeal could re-appraise the material on a first appeal
Yes; on a first appeal from the High Court's original jurisdiction the Court has power to confirm, reverse or vary the decision and to reappraise the material, though this appeal raised only issues of law.
Invoking rule 31 of the Court of Appeal Rules and the principles in Selle v Associated Motor Boat Co and Peters v Sunday Post, the Court noted its mandate to reappraise evidence and draw its own conclusions, exercised with caution. Since this appeal raised issues of law and not questions of fact or witness credibility, no deference to the trial court's findings on demeanour was required.
Legal principles established
#- The ouster in Section 23(2) of the Sixth Schedule to the Constitution protects the Vetting Board only where it acts within the parameters of the Constitution and the Vetting Act; acts outside the amplitude of its powers are not insulated from judicial challenge.
- The Vetting Board has no statutory power to re-vet a judge or magistrate or to rescind a determination of suitability; such decisions are invalid for want of jurisdiction.
- A determination of suitability arising from a tie of votes is valid and enforceable notwithstanding that it was not publicly announced, signed or sealed, since the Vetting Act requires publicity only for decisions to remove.
- Allegations of fact in a party's pleadings that are not traversed by the opposing party are deemed admitted.
Court orders
#- 1.Appeal allowed
- 2.Decision of the High Court striking out the Petition reversed
- 3.Declarations to issue in terms of prayers 1, 2, 3 and 6 of the Petition
- 4.Declaration that the appellant was found suitable to continue serving in the judiciary in Kenya in the determination of the Vetting Board of 10th September 2012
- 5.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Petition No. 406 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (rule 31) from the High Court's striking out of a constitutional petition; constitutional questions arising under Section 23 of the Sixth Schedule to the Constitution and Articles 47, 50 and 27
Relief refused
#Declaration that the appellant's right to fair hearing by an impartial and independent tribunal was infringed (prayer 5)
The Court ordered declarations only in terms of prayers 1, 2, 3 and 6, omitting prayer 5
Costs of the appeal
Each party to bear its own costs rather than costs being awarded to the appellant
Costs
Each party shall bear its own 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.
We allow the appeal. We reverse the decision of the High Court striking out the Petition and order that declarations shall issue in terms of prayers 1, 2, 3, 6 in the Petition and we order that the appellant was found suitable to continue serving in the judiciary in Kenya in the determination of Vetting Board of 10th September 2012.
In our view, the Constitution did not give the Vetting Board a blanket insulation from litigation.
If the Vetting Board acted outside the amplitude of its powers, the insulation could not hold.
nowhere in the Vetting Act has the Vetting Board been conferred with power to re-vet or to rescind a decision of suitability. Consequently, the Vetting Board's decisions taken on 21st December 2012 and 20th March 2013 were invalid for want of jurisdiction.
nowhere does the Vetting Act require the determination of suitability to be publicly announced. Section 21 (3) of the Vetting Act requires only the decision to remove a judge or magistrate from service to be made public.
As the Vetting Board did not controvert the allegations of the vetting of 10th September 2012 it is deemed to have implicitly admitted the fact of the said vetting and the determination thereof.
Where the ouster of jurisdiction did not apply, judges and magistrates were entitled to access justice as did the appellant.
Issues in the judgment
#The judgment internally gives inconsistent dates for the High Court's striking out of the petition (6th November 2015, judgment dated 3rd November 2015, and 'the petition was struck out on 3rd November 2014').
The judgment inconsistently refers to the same Sixth Schedule ouster provision as 'Section 23(2) of the Sixth Schedule' and 'Section 23(2) of the Fifth Schedule'.
The judgment inconsistently refers to the Vetting Act as Cap 8B in the impugned judgment quotation and elsewhere simply as the Vetting of Judges and Magistrates Act.
The judgment contains apparent typographical corruption of dates and wording in parts of the narrative (e.g. '10th September 2015' where 2012 is evidently meant, and 'vetting on 10th July 2012' in one passage versus 'vetted on 10th September 2012').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ombija v Judges and Magistrates Vetting Board (Civil Appeal 281 of 2015) [2015] KECA 129 (KLR)", Case Analysis (2015). Civil Appeal No. Nai. 295 of 2015 (as inferred from record; appeal instituted 23rd November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/129/eng@2015-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.