Judicial Service Commission v Njuguna & another
The bottom line
#Kenya's Court of Appeal ruled a written disciplinary process can be fair, threw out a magistrate's reinstatement and multi-million shilling damages claims, and set aside the earlier judgment entirely.
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 1st respondent was given a fair hearing as required by the rules of natural justice
- 2.Whether the trial court erred in holding that the appellant should have proceeded under Regulation 26 rather than Regulation 28 of the Judicial Service Regulations
- 3.Whether Sections 73, 74 and 82 of the retired Constitution were violated (cross-appeal)
- 4.Whether the trial court erred in applying Sections 45 and 47 of the Employment Act 2007, including when the cause of action arose
- 5.Whether the order for re-engagement/reinstatement was warranted
- 6.Whether the 1st respondent was entitled to exemplary, vindicatory or special damages
Key legal issues
#Whether the 1st respondent received a fair hearing
Yes - the Notice to Show Cause, his detailed written reply, and the opportunity to appeal satisfied natural justice; an oral hearing is not always necessary
Applying Ridge v Baldwin and Selvarajan, the court held the investigating body is master of its own procedure and may act in writing. The 1st respondent was notified of the complaints, gave a detailed response, and was informed of a right of appeal which he declined to exercise. Written exchanges of letters sufficed for procedural fairness.
Whether the trial court erred in requiring proceedings under Regulation 26
Yes - the choice of regulation was the Chief Justice's; the trial court usurped that discretion and delved into the merits of the decision
Regulations 26 and 28 prescribe different procedures and the power to elect between them vests in the Chief Justice. Having elected Regulation 28, it was not open to the trial court to substitute its own view that Regulation 26 was appropriate; in a constitutional petition the court cannot substitute its decision for that of the decision-maker.
Applicability of the Employment Act 2007
The cause of action arose on 13th June 2008 when the retirement decision was made, after the Act's commencement, so the trial court did not err in citing it
The letter of interdiction was merely a procedural step; the cause of action arose when the decision to retire in public interest was made on 13th June 2008, after the Employment Act came into force on 2nd June 2008. The court nonetheless found the reasons for termination were fair.
Reinstatement
The order for re-engagement was erroneous; reinstatement is discretionary and impractical after 10 years
Borrowing from the Uganda Supreme Court in Omunyokol, the court noted the 1st respondent would attain retirement age in 2019, had been retired 10 years earlier, and many changes in postings and promotions had occurred, making appropriate placement difficult.
Damages for lost career progression
Special damages claims were speculative 100% assumptions and have no merit
Applying Davies v Taylor, Mallet v McMonagle and the loss-of-chance authorities, the court held a claimant must prove loss of chance on balance of probability; claims premised on assumed promotion to High Court or Court of Appeal judge were speculative and imponderable.
Weight of NSIS intelligence reports
The trial judge erred in dismissing the NSIS complaint as bare allegations; intelligence reports must be accorded the weight they deserve
The complaints came from independent, unrelated sources and corroborated each other. The NSIS is a professional outfit established by statute that gathers and verifies information; its reports must be accorded due weight and casually dismissing them epitomises failure to appreciate the role of intelligence.
Legal principles established
#- Fairness of a hearing is not determined solely by its oral nature; it may be conducted through an exchange of letters, and decision-making bodies are masters of their own procedure provided they achieve appropriate fairness
- The choice of which disciplinary regulation to proceed under is vested in the Chief Justice, and a court cannot substitute its own decision for that of the decision-maker
- A person who opts not to exercise a right of appeal cannot later allege he was never heard
- Suspension on half pay while preserving the right to full pay is not punitive, oppressive, arbitrary, inhuman or degrading treatment
- Loss of chance claims must be proved on balance of probability and are ignored if merely speculative but evaluated if substantial
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the Employment and Labour Relations Court dated 28th January 2014 is set aside in its entirety
- 3.The cross-appeal is dismissed
- 4.Each party to bear his/its own costs before the trial court and in this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Petition No. 17 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution/Appellate jurisdiction Act (first appeal by way of retrial); appeal from the Employment and Labour Relations Court
Relief refused
#Reinstatement/re-engagement of the 1st respondent
Discretionary remedy; 10 years had elapsed, postings and promotions had changed, employer unwilling
Exemplary and vindicatory damages
Appellant's conduct was not oppressive, arbitrary or unconstitutional; doubted existence of vindicatory damages
Special damages for lost career progression (Ksh. 167,605,339 and alternatives)
Founded on 100% assumptions and speculation about future promotions
Cross-appeal for damages under Sections 73, 74 and 82
No violation of those provisions established
Costs
Each party is to bear his/its own costs before the trial court and in this appeal
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.
The final orders of this Court is that this appeal is hereby allowed. The judgment of the Employment and Labour Relations court dated 28th January 2014 be and is hereby set aside in its entirety.
In view of the fact that this is an employer and former employee dispute, we order that each party is to bear his/its own costs before the trial court in this appeal. Orders accordingly.
fairness of a hearing is not determined solely by its oral nature. It may be conducted through an exchange of letters.
The power to elect which Regulation to follow is vested upon the Chief Justice.
a person who opts not to exercise his right of appeal cannot turn around and allege he was never heard.
Suspension on half pay while preserving the right to full pay is not punitive, oppressive, arbitrary, inhuman or degrading treatment.
The lost chance and opportunity for career progression is to be ignored if it is merely speculative, but evaluated if it is substantial.
Issues in the judgment
#Date of response to Notice to Show Cause given inconsistently as 11th November 2006 and 11th November 2016
Date of retirement decision rendered as '13rd June 2008' in one passage
Case name misspelt 'Rooks v Barnard' for Rookes v Barnard
Case name misspelt 'Mallet v McMongale' for Mallet v McMonagle
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission v Njuguna & another", Case Analysis (2019). Civil Appeal 34 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1040/eng@2019-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.