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ELRCDismissedNot stated in the judgment

Marete v Judicial Service Commission (Petition 88 of 2019) [2019] KEELRC 1432 (KLR)

Employment and Labour Relations Court of Kenya
12 June 2019
MOMaureen Onyango
3,786 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan judge's bid to block a tribunal investigating his removal failed because courts cannot review how the Judicial Service Commission handled the petition.

What this practically means

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Executive summary

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Justice D. K. Njagi Marete, a Judge of the Employment and Labour Relations Court stationed at Kericho, moved the court by notice of motion dated 23rd May 2019 seeking an injunction to restrain the Judicial Service Commission from petitioning the President under Article 168(5) to appoint a tribunal to investigate him, and to prohibit any tribunal already established from proceeding. The complaint against him, lodged by Kaplan and Stratton Advocates, alleged that while injunctive orders from other courts were in force he granted ex parte orders setting them aside. He argued that the JSC had no jurisdiction to review his exercise of judicial discretion under Article 160(1), that it never served any formal decision on him, and that its press statement could not found a recommendation to the President. The respondent opposed through grounds of opposition, contending that it had already complied with Article 168(4) on 20th May 2019 and was therefore functus officio, and that the conditions for an injunction were not met. The court framed four issues and, applying the Supreme Court's decision in Judges and Magistrates Vetting Board and the Karume principle, held that Article 168 ousts the court's jurisdiction over the merits of a Judge's removal; intervention is confined to violations of rights during the JSC's consideration of a petition. The petitioner pleaded no breach of Bill of Rights freedoms. The JSC's mandate being exhausted, it was functus officio; prayer one was overtaken by events and prayer two could only lie against the tribunal or the Attorney General. The application was dismissed, no prima facie case having been established. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the respondent violated the rights and fundamental freedoms of the petitioner.
  2. 2.Whether the petitioner has established a prima facie case.
  3. 3.Whether the respondent is functus officio.
  4. 4.Whether the petitioner is entitled to the orders sought.

Key legal issues

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01

Whether the High Court/ELRC has jurisdiction to review the Judicial Service Commission's decision to recommend the removal of a Judge under Article 168

Holding

The court lacks jurisdiction to review the merits of a Judge's removal process; its intervention is confined to violations of rights and fundamental freedoms during the consideration of the petition.

Reasoning

Relying on the Supreme Court's decision in Judges and Magistrates Vetting Board, the court held that the Constitution's special procedure for removal of judges must be strictly followed. Article 168 ousts review of the merits of removal. The petitioner's complaint was that the JSC wrongly evaluated his judicial decisions, which is not a Bill of Rights complaint but an attempt to have the court exercise pretended appellate or supervisory jurisdiction over judicial decision-making.

p. 7
02

Whether the respondent is functus officio

Holding

Yes. The respondent had already complied with Article 168(4) by forwarding the petition to the President on 20th May 2019 and has no further role in the matter.

Reasoning

Under Article 168 the JSC's role is limited to initiating removal and transmitting a petition that discloses a ground for removal to the President. Having done so, its mandate is exhausted. What remains is for the President to suspend the Judge and appoint a tribunal within fourteen days, and the orders sought could not be granted against the respondent.

p. 8
03

Whether the petitioner established a prima facie case for the injunction sought

Holding

No. The petitioner did not plead any breach of his rights and fundamental freedoms, and his complaints went to the merits of the JSC's assessment of his judicial decisions.

Reasoning

The petitioner's grievance was that the JSC impermissibly reviewed his exercise of judicial discretion and failed to serve him with a written decision. The court found no pleaded violation of Bill of Rights freedoms, noted that the Judicial Service Act prescribes no procedure for the JSC's consideration of a removal petition before transmission, and held there was no basis for faulting the manner in which the respondent transmitted the information.

p. 8

Legal principles established

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  • Article 168 of the Constitution ousts the jurisdiction of the High Court and by extension the Employment and Labour Relations Court from determining the merits of the removal of a Judge; the court may only intervene where there is violation of the Judge's rights and fundamental freedoms during the process of considering a removal petition.
  • Where there is a clear procedure for redress prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
  • The Judicial Service Commission's role under Article 168 is limited to initiating removal and, if satisfied that a petition discloses a ground for removal, sending the petition to the President; once it has done so it is functus officio.

Court orders

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  1. 1.The application dated 23rd May 2019 was dismissed, the court finding that the petitioner had not established a prima facie case for grant of the orders sought.

The bench

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

MO
majority

Wrote the judgment

Jurisdiction invoked
Articles 165(3) and 165(6) of the Constitution (jurisdiction of the High Court to determine whether rights and fundamental freedoms have been denied, violated, infringed or threatened, as extended to the Employment and Labour Relations Court); the court held Article 168 ousts jurisdiction to review the merits of a Judge's removal process

Relief refused

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Injunction restraining the Chairman or Secretary of the Judicial Service Commission from petitioning the President under Article 168(5) recommending the setting up of a Tribunal to investigate the petitioner.

Prayer one was overtaken by events as the respondent had already complied with its mandate and forwarded the petition to the President.

p. 8

Prohibition of a Tribunal already established to investigate the petitioner from proceeding with the investigation.

The orders could only be made against the tribunal or the Attorney General, not the respondent, who has no control over them.

p. 8

Costs

No costs order was made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For these reason I find that the applicant has not established a prima facie case for grant of the orders sought.
p. 8Final disposition - dismissal of the application
it is my view that Article 168 ousts the jurisdiction of the High Court and by extension this court, from determining the merits of the removal of a Judge and that the court may only intervene where there is violation of the rights and fundamental freedoms of the Judge
p. 7Ouster of jurisdiction under Article 168
Having already finalised its mandate under Article 168, I agree with the respondent that it is functus oficio. It has no further role in the matter. What remains is for the President to appoint a tribunal.
p. 8Functus officio of the Judicial Service Commission
where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
p. 7Exhaustion of constitutional procedures

Issues in the judgment

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minor

The judgment contains no case number or citation identifying the petition, and no costs order is made at the conclusion.

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, "Marete v Judicial Service Commission (Petition 88 of 2019) [2019] KEELRC 1432 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1432/eng@2019-06-12

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