Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Nairobi)

Chief Justice and President of the Supreme Court of Kenya & another v Khaemba (Civil Appeal 522 of 2019) [2021] KECA 322 (KLR)

Court of Appeal of Kenya
17 December 2021
ASAsike-MakhandiaSKS. ole KantaiPNP. Nyamweya
5,249 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that a judicial officer cannot be suspended before proper disciplinary charges are laid, and never without pay.

What this practically means

#

Executive summary

#
This is a unanimous first appeal by the Chief Justice and the Judicial Service Commission against a decision of the Employment and Labour Relations Court in Nairobi ELRC Petition No 100 of 2019, which had declared the Chief Justice's letter of 13th June 2019 suspending a Principal Magistrate illegal, quashed it, ordered payment of withheld salaries and benefits, and directed reinstatement. The Court of Appeal framed three issues: the conditions applicable to the Chief Justice's power to suspend a judicial officer under the Third Schedule to the Judicial Service Act; whether a judicial officer may be suspended without pay; and whether courts may interfere with disciplinary processes initiated under the Third Schedule. On the first issue, the Court held that paragraph 17(2) requires dismissal proceedings under paragraph 25 to be undertaken first, including framing of charges, an opportunity to respond, and laying of the matter before the JSC; the impugned suspension preceded any charge and was therefore unfair and illegal. On the second issue, the Court held that no provision authorises suspension without pay, penal provisions must be construed restrictively, and only the JSC may determine suspension pay. On the third issue, while exhaustion of alternative remedies is imperative, courts retain residual jurisdiction to intervene where there is illegality, procedural irregularity, prejudgment of culpability, and extreme hardship; here nothing valid remained to remit. The appeal was dismissed with costs to the respondent, the trial court's orders upheld, and the Registrar directed to send the judgment to the Attorney General for the identified amendments and regulations.

Questions the Court framed

#

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

  1. 1.What conditions, if any, are applicable to the exercise of the Chief Justice's disciplinary powers to suspend a judicial officer under the Third Schedule to the Judicial Service Act?
  2. 2.Whether a judicial officer can be suspended without pay under paragraph 17(3) of the Third Schedule to the Judicial Service Act
  3. 3.Whether the court can interfere with a disciplinary process initiated under the Third Schedule to the Judicial Service Act

Key legal issues

#
01

Conditions precedent to the Chief Justice's power to suspend a judicial officer under paragraph 17(2) of the Third Schedule to the Judicial Service Act

Holding

Suspension under paragraph 17(2) requires that dismissal proceedings under paragraph 25 first be undertaken: an inquiry, framing and forwarding of charges, an opportunity for the officer to respond, and laying of the charges before the Judicial Service Commission. The Chief Justice suspended the respondent before any charge was framed and before JSC approval, and thereby acted unfairly and illegally.

Reasoning

A plain reading of paragraph 25 discloses four stages that must precede any opinion that an officer ought to be dismissed. The 30th May 2019 letter was merely an inquiry, not a charge; the suspension with nil pay preceded the framing of charges and the Commission's decision. Article 47 of the Constitution and the Fair Administrative Action Act reinforce the procedural fairness required before suspension under paragraph 17(2).

p. 3
02

Whether a judicial officer can be suspended without pay

Holding

No. There is no express or implied provision authorising suspension without pay; alimentary allowance under paragraph 17(3) is the entitlement, and its terms are for the Judicial Service Commission to determine by regulations, not the Chief Justice.

Reasoning

The terms of a statute withholding pay are penal and must be construed restrictively; a person should not be penalised except under clear law. The respondent's entitlement to alimentary allowance is grounded in constitutional fair labour practices and reasonableness. The Chief Justice, not being the repository of the power to determine pay, could not lawfully impose nil salary.

p. 12
03

Whether courts can interfere with a disciplinary process initiated under the Third Schedule to the Judicial Service Act

Holding

Although exhaustion of alternative remedies is a constitutional and legal imperative, courts retain residual jurisdiction to intervene in exceptional circumstances such as illegality, procedural irregularity, prejudgment of culpability, and extreme hardship; here the process was illegal ab initio and nothing valid could be remitted.

Reasoning

The doctrine of exhaustion articulated in Speaker of National Assembly v Karume and Geoffrey Muthinja Kabiru is subject to exceptional circumstances. The disciplinary process was marred by illegality from the start, the Chief Justice had pre-judged gross misconduct, and the respondent suffered extreme hardship through indefinite suspension with nil pay, rendering continuation an exercise in futility.

p. 4
04

The role of this Court as a first appellate court

Holding

A first appeal to the Court of Appeal is by way of retrial: the Court re-evaluates the evidence and draws its own conclusions, while making due allowance for not having seen or heard the witnesses, and departs from trial findings only where they are unsupported by evidence or based on wrong principles.

Reasoning

Relying on Selle & another v Associated Motor Boat Company Limited and Jabane v Olenja, the Court reiterated that it is not bound to accept trial court findings of fact but will depart only where the trial court failed to take account of particular circumstances or acted on wrong principles of law.

p. 7

Legal principles established

#
  • Before the Chief Justice may suspend a judicial officer under paragraph 17(2) of the Third Schedule to the Judicial Service Act, dismissal proceedings under paragraph 25 must first be undertaken, including the laying of charges and any response before the Judicial Service Commission.
  • A judicial officer cannot be suspended without pay; there is no provision in the Judicial Service Act or Employment Act permitting withholding of salary during suspension, and penal provisions must be construed restrictively.
  • Only the Judicial Service Commission, not the Chief Justice, is empowered to determine the pay of a judicial officer on suspension.
  • Courts retain a residual jurisdiction to intervene in internal disciplinary processes in exceptional circumstances, such as illegality, procedural irregularity and extreme hardship, notwithstanding the doctrine of exhaustion of remedies.

Court orders

#
  1. 1.The orders in the judgment of the trial court dated 30th August 2019 in Nairobi ELRC Petition No 100 of 2019 are upheld, save to the extent that they may have been modified or qualified by the findings made in this judgment
  2. 2.The appeal is dismissed with costs to the respondent
  3. 3.The Registrar of the court is directed to send a copy of the judgment for the attention of the Attorney General, in light of the identified amendments and regulations required to be made to, and under the Third Schedule to the Judicial Service Act

The bench

#

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

AS
majority
SK
majority
PN
majority
On appeal from
Employment and Labour Relations Court
Nairobi ELRC Petition No 100 of 2019
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction

Relief refused

#

The appellants' prayer that the matter be remitted back to the Judicial Service Commission for continuation of disciplinary proceedings

The disciplinary process was irregular and illegal ab initio, so there were no valid proceedings to remit

p. 4

Costs

The appeal is dismissed with costs to the respondent

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 therefore make the following orders: 1. The orders in the judgment of the trial court dated 30th August 2019 in Nairobi ELRC Petition No 100 of 2019 are hereby upheld, save to the extent that they may have been modified or qualified by the findings made in this judgment. 2. The appeal herein is dismissed with costs to the respondent.
p. 13Final orders / disposition
it is a condition precedent that before a suspension is effected under paragraph 17(2) of the Third Schedule to the Judicial Service Act, the applicable dismissal proceedings provided under paragraph 25 of the said Third Schedule must be undertaken
p. 10Condition precedent to suspension of judicial officers
there is no express, implied or other provision or suggestion in the Judicial Service Act and Employment Act of 2007 that the salary of a judicial officer or other staff on suspension would be withheld or not paid during the period of suspension
p. 12Suspension without pay is unlawful
repository of the power to determine the pay a judicial officer on suspension in paragraph 17(3) of the Third Schedule to the Judicial Service Act is the Judicial Service Commission and not the Chief Justice, who is not therefore empowered to make any decision as regards the pay of judicial officers on suspension
p. 4Exclusive power of the JSC over suspension pay
the impugned disciplinary process, having been irregular and illegal ab initio, meant there were no valid proceedings that could be remitted back to the appellants for consideration
p. 4Court's residual jurisdiction to interfere; no remittance
The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the rules of natural justice are manifest.
p. 13Exceptional circumstances for judicial intervention (quoting Fleur Investments)

Issues in the judgment

#
minor

The judgment records the respondent's date of employment as 1st July 2020 while the petition was filed on 17th June 2019, which would predate the employment; this appears to be an error in the judgment itself.

minor

The judgment inconsistently cites the section of the JSC HR Policies and Procedure Manual as 'section D7.2 (xviii)' in the narration and 'section D 72 (xvii)' when describing the Chief Justice's letter.

minor

The trial court judgment date is given as 30th August 2019, yet the petition described was filed and amended in June 2019 with the appeal memorandum dated 24th October 2019; the narrative also describes a show cause letter of 30th May 2019 from the Chief Justice earlier attributed to a later date, indicating internal chronological inconsistencies.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Chief Justice and President of the Supreme Court of Kenya & another v Khaemba (Civil Appeal 522 of 2019) [2021] KECA 322 (KLR)", Case Analysis (2021). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/322/eng@2021-12-17

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