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Court of AppealPartially AllowedCivil Appeal E403 of 2021· [2024] KECA 1939 (KLR)

Judicial Service Commission v Eric Michael Karanja Kamande

Court of Appeal
20 December 2024
6,877 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld the dismissal of a public officer who met a bidder during a tender process, ruling the disciplinary process was fair and lawful.

What this practically means

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Executive summary

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The Judicial Service Commission appealed against a decision of the Employment and Labour Relations Court (Rika, J.) which had declared the disciplinary process leading to the dismissal of Eric Michael Karanja Kamande, a principal administrative officer, unfair, unlawful and unconstitutional, and had ordered his reinstatement. The respondent had been interdicted and dismissed after a dissatisfied bidder's successful review before the Public Procurement Administrative Review Board led to charges of gross misconduct - meeting a bidder during an ongoing tender process and failing to disclose the meeting. The Court of Appeal, in a unanimous judgment, allowed the appeal. It held that the constitutional petition met the Anarita Karimi Njeru pleading threshold, but disagreed with the trial court's interpretation of rule 25 of the third schedule to the Judicial Service Act: the provisions are disciplinary in nature, no separate pre-hearing investigation is mandatorily required, and the Chief Justice enjoys a wide discretion whether to hold an inquiry. The court further held that the disciplinary committee is not a court or investigative agency with power to compel witnesses, so the failure to secure the complainant's attendance - after two unanswered summonses - did not render the hearing unfair. Applying the perceived-bias principle from Metropolitan Properties v Lannon, the court found that the respondent's undisclosed meeting with a bidder during the tender evaluation process created a perception of bias, validating the termination. The ELRC judgment was set aside, the respondent's petition dismissed with costs to the appellant, and the respondent's cross-appeal for Kshs 2,000,000 in constitutional damages was dismissed with costs. This judgment binds the ELRC and subordinate courts on the interpretation of the Judicial Service Act's disciplinary procedure.

Key legal issues

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01

Whether the constitutional petition met the pleading threshold

Holding

The petition satisfied the Anarita Karimi Njeru threshold as restated in Mumo Matemu; the respondent cited Article 47 and pleaded the manner of breach, so the claim was properly brought as a constitutional petition.

Reasoning

The court restated the requirement of reasonable precision in identifying the infringed provisions and the manner of infringement, while accepting that precision demands neither formulaic prescription of facts nor formalistic utterance of constitutional provisions. The respondent had specifically pleaded denial of an opportunity to cross-examine the star witness as an infraction of Article 47, which sufficed.

p. 6
02

Whether rule 25 of the third schedule to the Judicial Service Act mandated a separate investigation before a disciplinary hearing

Holding

No. The provisions under rule 25 are 'proceedings for dismissal', disciplinary in nature; the committee under rule 25(3) is not confined to investigation, and there are no transitionary clauses making it purely investigative.

Reasoning

The court disagreed with the ELRC judge's interpretation. The heading of rule 25 shows the provisions are disciplinary; the same committee proceeds to the hearing under rule 25(4); the word 'investigations' does not mean the committee must 'down its tools' after investigating, since legitimacy of charges can only be established at a hearing where the employee defends himself.

03

Whether the disciplinary process met constitutional fair-hearing standards despite the complainant's non-attendance

Holding

Yes. The respondent was served with charges, responded, appeared before the committee, cross-examined witnesses, and raised no objections; the complainant was summoned twice and failed to attend, and the committee was entitled to dispense with his attendance.

Reasoning

The court found the charges complied with rule 25(1); the respondent was notified, invited to respond, given a chance to defend himself and ably cross-examined the other witnesses. The committee, not being a court or constitutionally established investigative agency, lacked power to compel Okeyo's attendance, and awaiting his evidence would have further impeded the hearing. The respondent's objections were an afterthought.

04

Whether the reasons for termination were valid

Holding

Yes. Meeting a bidder during the tender evaluation process without disclosure to co-committee members created a perception of bias justifying a finding of gross misconduct.

Reasoning

Applying the perceived-bias principle from Metropolitan Properties Co (FGC) Ltd v Lannon, the court held that the law looks at the impression given to right-minded persons, not the actual state of mind of the decision-maker. The respondent did not deny the meeting and did not disclose it; his explanations did not displace the appearance of impropriety.

p. 11
05

Whether the respondent was entitled to constitutional damages on cross-appeal

Holding

No. Having found the termination proper, fair and lawful, the court found no merit in the cross-appeal for Kshs 2,000,000 in damages.

Reasoning

The cross-appeal sought damages under Article 23 on the premise of apparent constitutional breaches. Since the court had upheld the disciplinary process and termination as compliant with the Constitution, the Employment Act, the Judicial Service Act and the Fair Administrative Action Act, the foundational breaches were not established and the damages claim failed.

Legal principles established

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  • Rule 25 of the third schedule to the Judicial Service Act does not mandatorily require a separate investigation before a disciplinary hearing; the Chief Justice has a wide discretion whether to hold an inquiry, but any process must respect constitutional fair-hearing principles.
  • The committee or panel appointed under rule 25(3) is a disciplinary committee, not a court or independent investigative agency, and does not possess coercive powers to compel witnesses that have not been donated to it.
  • A member of a tender evaluation committee who meets a tenderer during the evaluation process and fails to disclose the meeting gives rise to a perception of bias, whatever the purpose of the meeting.
  • A constitutional petition pleading the specific constitutional provision infringed and the manner of infringement satisfies the Anarita Karimi Njeru threshold.

Court orders

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  1. 1.The appeal is allowed to the extent that the judgment of the ELRC is set aside
  2. 2.Substituted therefor is an order that the respondent's petition amended on 19th October 2020 is dismissed with costs to the appellant
  3. 3.The respondent's cross-appeal is dismissed with costs
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC Petition No. 50 of 2020
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court (appeal by way of retrial)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Judicial Service Commission v Eric Michael Karanja Kamande", Case Analysis (2024). Civil Appeal E403 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1939/eng@2024-12-20

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