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ELRCPartially AllowedPetition dated 24th May 2023· [2023] KEELRC 3058 (KLR)

Wahome v Judicial Service Commission (Employment and Labour Relations Petition E094 of 2023) [2023] KEELRC 3058 (KLR)

Employment and Labour Relations Court
28 November 2023
AMANNA NGIBUINI MWAURE
7,051 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court upheld a magistrate's dismissal by the Judicial Service Commission but ruled his four-year unpaid suspension was unlawful and he must be compensated.

What this practically means

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Executive summary

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The Petitioner, a Chief Magistrate, challenged his suspension without pay (May 2019) and subsequent dismissal (February 2023) by the Judicial Service Commission following disciplinary proceedings over allegations that he acted as a conduit for a Kshs 400,000 bribe intended for the trial magistrate in Eldoret EACC Case No. 1 of 2012, Republic v KeRRA, Simam & 9 Others. He alleged violation of fair administrative action, fair labour practices and access to information; bias arising from reliance on the Hansard of the Cherere disciplinary proceedings and overlapping panels; and inordinate delay of nearly four years. The court framed four issues and dismissed each complaint. It held that Article 252(1)(a) empowered JSC to investigate on its own initiative without a formal complaint; that the Notice to Show Cause, supply of evidence, legal representation, cross-examination and eventual provision of the Hansard satisfied paragraph 25 of the 3rd Schedule of the Judicial Service Act and sections 41, 43 and 45 of the Employment Act, so the dismissal was substantively justified and procedurally fair. The bias claim failed because the Petitioner had initially raised no objection to the panel and the Hansard was directly relevant. The delay was excused on account of Covid-19 lockdowns, the part-time nature of the Commission, and the Petitioner's own adjournments, following Karani v JSC. However, following Byran Mandila Khaemba, the court held that suspension without pay was unlawful, the officer being entitled to an alimentary allowance under paragraph 17(3) of the 3rd Schedule, and the limitation defence failed. Most prayers were denied, but JSC was directed to determine and advise the court within 90 days on the alimentary allowance payable, with mention on 29th February 2024. Each party was ordered to bear its own costs.

Key legal issues

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01

Initiation of disciplinary proceedings without a formal complaint

Holding

JSC was entitled to act on its own initiative based on the Cherere proceedings

Reasoning

The Petitioner's disciplinary case arose from findings in the disciplinary proceedings against Hon. Lady Justice Cherere, in which the JSC committee recommended disciplinary action against him. Article 252(1)(a) empowers commissions to investigate on their own initiative, so no independent complaint was required, and the Notice to Show Cause clearly set out the charges.

p. 7
02

Procedural fairness of the disciplinary process and dismissal

Holding

The process complied with paragraph 25 of the 3rd Schedule of the Judicial Service Act and section 41 of the Employment Act

Reasoning

The Petitioner was issued a Notice to Show Cause, responded, was supplied documentary evidence, was represented by counsel, cross-examined witnesses, received the Hansard, and was dismissed only after committee deliberation and JSC adoption of the report. Valid reasons for dismissal - receipt of bribe money as conduit - were proved through M-Pesa transactions with advocate Namatsi.

p. 11
03

Bias of the disciplinary panel

Holding

No actual or apparent bias established

Reasoning

The Petitioner had affirmed at the outset that he had no objection to the panel's constitution; raising the objection later was an afterthought. The Hansard from the Cherere proceedings was directly and substantially relevant as the case against him emanated from those proceedings. Applying the Shollei objective test, a fair-minded observer would not apprehend bias.

p. 12
04

Inordinate delay

Holding

Delay was justified and excusable

Reasoning

Applying Karani v Judicial Service Commission, delay must be assessed case by case. The Respondent explained the delay by Covid-19 lockdown measures, its part-time composition capped meetings, involvement in judicial recruitment, and the Petitioner's own adjournment and being locked out of Nairobi. The delay therefore did not violate his rights.

p. 12
05

Suspension without pay

Holding

Suspension without pay for nearly four years was unlawful; the Petitioner is entitled to alimentary allowance

Reasoning

Following Byran Mandila Khaemba, section 17 of the Judicial Service Act does not permit suspension without pay; paragraph 17(3) of the 3rd Schedule provides for an alimentary allowance. The Respondent's limitation defence fails because suspension is not a ground for termination. The court directed JSC to fix the amount payable within 90 days for a final award.

p. 13

Legal principles established

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  • A commission may initiate disciplinary proceedings on its own initiative without a formal complaint
  • Suspension without pay of a judicial officer is not sanctioned by the Judicial Service Act; a suspended officer is entitled to alimentary allowance
  • Delay alone does not establish a rights infringement; the court must interrogate whether it is justifiable and excusable

Court orders

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  1. 1.Prayers i, ii, iv, v, vii, viii and x denied for lack of merit
  2. 2.JSC directed to consider fairly what amount it should have paid the Petitioner as alimentary allowance for the period of suspension and advise the court within 90 days, enabling the court to give a final award
  3. 3.Mention on 29th February 2024 for that report
  4. 4.Each party to meet their respective costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 35, 41, 47, 75(1)(a) and (b), 159(2)(d), 168(4), 252(1)(a), 48
  • Judicial Service ActSection 32; 3rd Schedule paragraphs 17(2), 17(3), 25(1)-(11)
  • Employment Act 2007Sections 41(1), (2), 42(1), 43(1)-(2), 44(3)-(4), 45(1)-(2)
  • Fair Administrative Action Actgeneral
  • Judiciary Code of ConductSection 45(1) and (4); rule 10 (Judicial Code of Conduct and Ethics, 2003)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (7)

  • Shollei v Judicial Service Commission & Another (Petition 34 of 2014) [2022] KESC 5 (KLR)
    [2022] KESC 5 (KLR)
  • Martin Situma Bakuli v African Express Airways [2021] eKLR
    [2021] eKLR
  • Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR
    [2014] eKLR
  • Sabina Chege vs Independent Electoral & Boundaries Commission
  • Karani V Judicial Service Commission (Petition 3 of 2021) [2022] KESC 37 (KLR)
    [2022] KESC 37 (KLR)
  • Mwangi S Kimenyi v Attorney General & another (2014) eKLR
    (2014) eKLR
  • Byran Mandila Khaemba vs Chief Justice and President of Supreme Court Cause No 100 Of 2019
    Cause No 100 of 2019
Jurisdiction invoked
Employment and labour relations jurisdiction over a judicial officer's employment; Employment Act 2007 and Judicial Service Act, 3rd Schedule

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, "Wahome v Judicial Service Commission (Employment and Labour Relations Petition E094 of 2023) [2023] KEELRC 3058 (KLR)", Case Analysis (2023). Petition dated 24th May 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3058/eng@2023-11-28

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