Michael Kizito Oduor & 3 others v Magistrates and Judges Vetting Board & 1 other
The bottom line
#Kenya's Court of Appeal ruled that magistrates removed by the Vetting Board can challenge those decisions in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Supreme Court in JMVB I conclusively determined that the ouster in section 23(2) of the Sixth Schedule applies to magistrates.
It did not. The Supreme Court's decision concerned judges; no magistrate or association of magistrates was a party and the question of extending the ouster to magistrates was never raised, urged or decided.
Kiage, JA examined the record in JMVB I and found that the parties were the Board, the LSK, the Attorney General, the JSC and judges; no magistrate was a party. The Supreme Court's own framing at paragraph 175 confined the issue to the removal of a judge. References to 'magistrates' in the judgment were merely descriptive of the Board's name, and the High Court erred by emphasizing those words and by relying on a concurring observation of Mutunga, CJ rather than the majority holding.
Whether section 23(2) of the Sixth Schedule ousts the High Court's jurisdiction over the Board's decisions on magistrates.
It does not. The ouster clause covers only 'a judge'; magistrates were deliberately excluded and the exclusion must be given effect.
Section 23(1) subjects all judges and magistrates to vetting, but section 23(2) creates the ouster only for judges. Applying the literal rule and the expressio unius canon, the omission of 'magistrate' was conscious and significant, not accidental. The High Court's purposive reading, including its strained construction of the word 'or', distorted the text. The High Court therefore erred in declaring itself bereft of jurisdiction, and the petitions should be heard on the merits.
The standard of interference by a first appellate court where the decision below is discretionary.
The Court follows Mbogo v Shah: it interferes only where the court below misdirected itself in law, misapprehended the facts, took into account irrelevant matters, failed to consider relevant matters, or reached a plainly wrong decision.
As a first appellate court sitting on a record-based (non-witness) matter, the Court is at no disadvantage and reaches independent conclusions, but is slow to disturb discretionary decisions absent the enumerated errors. The High Court's wrong framing of the question and wholesale adoption of Supreme Court excerpts without interrogating the arguments amounted to such misdirection.
Legal principles established
#- The omission of the word 'magistrate' from section 23(2) of the Sixth Schedule to the Constitution was deliberate; the ouster clause applies only to judges and does not bar the High Court from reviewing the Vetting Board's decisions concerning magistrates.
- Ouster or finality clauses must be given the most strict application and limited in their scope.
- Where statutory text is clear and unambiguous, courts must not resort to policy context or read words into the provision.
- The expressio unius canon applies to the differential drafting of section 23(1) (all judges and magistrates) and section 23(2) (judges only) of the Sixth Schedule.
- Decisions of the Supreme Court bind all other courts under article 163(7), but a superior court must correctly identify the precise question that was actually decided before treating it as binding.
Court orders
#- 1.The appeals are allowed.
- 2.The judgment and decree of the High Court dismissing the various consolidated petitions are set aside.
- 3.The Constitutional Petitions are to be listed for hearing and determination by a judge or a bench comprising an odd number of judges of the High Court, other than Lesiit, Wakiaga, Ngenye, Mativo and Onyiego, JJ.
- 4.No orders as to costs.
- On appeal from
- High Court of Kenya (5-Judge Constitutional Bench)
- Consolidated Constitutional Petitions (judgment delivered 22nd June 2018)
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court's dismissal of consolidated constitutional petitions challenging removal from office by the Magistrates and Judges Vetting Board; Supreme Court precedent under article 163(7) of the Constitution was central to the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kizito Oduor & 3 others v Magistrates and Judges Vetting Board & 1 other", Case Analysis (2021). Civil Appeal Nos 457, 458, 466 and 475 of 2018 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/92/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.