Judicial Service Commission & another v LMN (Civil Appeal 551 of 2019) [2024] KECA 1394 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a magistrate with full back pay, ruling only the Chief Justice can charge judicial officers and 14 days' notice is mandatory.
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 respondent was accorded a fair disciplinary process in light of the conduct of the 1st appellant and the notification to her on the hearing
- 2.Whether the 1st appellant or the 2nd appellant could lawfully frame a charge and commence disciplinary proceedings against a judicial officer in the absence of a substantive Chief Justice
- 3.On the cross appeal: the propriety of reinstatement of the respondent to employment and the terms thereof
- 4.On the cross appeal: whether damages, if any, are awardable to the respondent
Key legal issues
#Who may lawfully frame and issue a charge against a judicial officer under Regulation 25 of the Third Schedule to the Judicial Service Act
Only the Chief Justice may frame and forward a charge; the Chief Registrar's issuance of the charge and interdiction letters in the Chief Justice's absence was ultra vires and a usurpation of the Chief Justice's powers.
Regulation 25(1)-(3) vests the framing and forwarding of charges in the Chief Justice, who conducts an inquiry, frames charges, invites the officer to respond, and only then lays the matter before the Commission. The Chief Registrar's constitutional role is that of Secretary to the Commission under Article 171(3); there is no convergence between that secretarial role and the power to write a charge letter. The delegation argument fails because the disciplinary power delegated to the Chief Justice reverts to no one capable of framing charges in his absence.
Whether the one-day notice of the disciplinary hearing rendered the process procedurally unfair
Yes. Regulation 25(4) mandatorily requires not less than fourteen days' written notice; a one-day notice violated the regulation and the respondent's right under Article 50(2)(c) to adequate time to prepare a defence.
The word 'shall' in Regulation 25(4) places the fourteen-day notice requirement beyond the discretion of the Committee or Panel. Whether or not the respondent complained of the short notice is irrelevant; the law itself compels compliance. A day's notice deprived her of sufficient time to prepare her defence, a cardinal right underpinned by Article 50(2)(c) of the Constitution.
Whether reinstatement and back pay were proper remedies on the cross appeal
Reinstatement was proper and, given the outright procedural flaw in the termination, it should have been with full pay and benefits; the respondent was deemed reinstated with accrued salary and benefits from 22nd August 2016.
Citing this Court's decision in JSC & another v Njora, once a dismissal of a state officer is adjudicated unlawful and void, reinstatement is an automatic remedy. The trial judge made no express reinstatement order, and the Commission's reinstatement with half benefits was inadequate. Because the procedure used to terminate her was fatally flawed, reinstatement had to be on full pay and benefits. Damages were refused because none were made out and the withheld half salary would be adequate compensation.
Legal principles established
#- Under Regulation 25 of the Third Schedule to the Judicial Service Act, only the Chief Justice has the power to frame and forward charges against a judicial officer; the Judicial Service Commission and the Chief Registrar cannot assume that power in the Chief Justice's absence.
- The Judicial Service Commission cannot act on behalf of, or in the shoes of, the Chief Justice in initiating disciplinary proceedings where the office of Chief Justice is vacant.
- The requirement in Regulation 25(4) of at least fourteen days' written notice of a disciplinary hearing is mandatory; a hearing convened on shorter notice is procedurally improper regardless of whether the officer complained.
- Once a dismissal decision involving a state officer is adjudicated unlawful, null and void, reinstatement is an automatic remedy, and reinstatement following a fatally flawed termination must be with full pay and benefits.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- 2.The cross appeal partially succeeds with half costs to the respondent
- 3.The respondent is deemed to be reinstated to her position of Senior Principal Magistrate with accrued salary and benefits from the date of interdiction, 22nd August 2016
- 4.The 1st appellant may commence disciplinary proceedings if it so wishes
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Petition dated 31st December 2018
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (appellate court reanalysing evidence and law on appeal and cross-appeal)
Relief refused
#General, exemplary and punitive damages for constitutional violations
The respondent did not make a case for damages; the payment of the withheld half salary was held to be adequate compensation
Declaration that Regulations 22 and 23 of the Third Schedule of the Judicial Service Act are unconstitutional
The Court did not grant this relief in its final orders despite it being sought on the cross appeal
Finding of discrimination on account of health status
Appellants contended no differential treatment on health grounds was demonstrated; the Court's final orders did not grant declarations on discrimination
Costs
The appeal is dismissed with costs to the respondent; the cross appeal partially succeeds with half 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 conclude, based on the foregoing, that under Regulation 25, only the Chief Justice has the powers to frame and forward a charge or charges to a judicial officer under investigation.
Flowing from above, we are not persuaded that Regulation 25 allows the 1st appellant to purport to act on behalf of the Chief Justice in his or her absence.
The wordings of Regulations 25 (4) are put in mandatory terms by use of the word 'shall' which requires the Committee or Panel to give a notice of not less than 14 days.
The appeal is dismissed with costs to the respondent.
The respondent is hereby deemed to be reinstated to her position of Senior Principal Magistrate with accrued salary and benefits from the date of interdiction, which is 22nd August 2016.
The 1st appellant may commence disciplinary proceedings if it so wishes.
Issues in the judgment
#The judgment cites both 'section 21 of the Judicial Service Commission Act' and 'section 21 of the Judicial Service Act' for the 2nd appellant's functions, an apparent internal inconsistency in the statutory reference.
The judgment itself notes that the appellants' Memorandum of Appeal mislabelled Part IV of the Third Schedule instead of Part V, and the Court corrected this reference.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Maina v Judicial Service Commission & 3 others (Employment and Labour Relations Petition E009 of 2023) [2025] KEELRC 686 (KLR)[2025] KEELRC 686 (KLR)6 Mar 2025distinguished
Cite this brief
#Cite this brief
Caselaw, "Judicial Service Commission & another v LMN (Civil Appeal 551 of 2019) [2024] KECA 1394 (KLR)", Case Analysis (2024). Appeal from ELRC Petition dated 31st December 2018 (appellants' Memorandum of Appeal dated 12th November 2019; respondent's cross-appeal dated 13th January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1394/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.