Wasilwa v Judicial Service Commission; Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers & 3 others (Interested Parties) (Petition E237 of 2023) [2025] KEELRC 281 (KLR)
The bottom line
#Kenya's Employment Court ruled the Judicial Service Commission must first decide a judge's jurisdictional objections before disciplining her over a ruling.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a fundamental procedural misstep vis-a-vis the mandate of the respondent in processing complaints for the removal of a judge
- 2.Whether the complaint/accusations against the petitioner to or by the JSC relate to a decision made by a judge in the exercise of her judicial authority (as framed by the petitioner)
- 3.Whether the JSC's authority under the Constitution includes the authority to review and determine the correctness of a decision of a court (as framed by the petitioner)
- 4.Whether there was a breach of the petitioner's rights in the proceedings (as framed by the petitioner)
- 5.What are the appropriate reliefs (as framed by the petitioner)
- 6.Whether the respondent's role of investigating the complaint against the petitioner is ultra vires and a threat to the independence of the Judiciary (as framed by the respondent)
- 7.Whether the petitioner was accorded fair administrative action during the proceedings (as framed by the respondent)
Key legal issues
#Whether the JSC was required to determine the petitioner's threshold objections on jurisdiction/competence before proceeding with the complaint
Yes. The JSC's failure to address or decide the objections, or disclose reasons, was a fundamental legal misstep violating article 47.
The JSC sits as a quasi-judicial tribunal when considering removal of a judge. The petitioner raised threshold questions in her two responses, including that an appeal was pending and that the JSC could not review judicial decisions. The record did not show how the JSC addressed them. Such objections go to jurisdiction and, like a preliminary objection, ought to be determined first; review of that threshold decision belongs to the court, not a retrial of facts.
Whether the JSC may review the merits of a judicial decision
The JSC should avoid complaints which invite it to analyse a judgment or ruling to determine alleged incompetence; aggrieved parties should appeal or seek review, though judgments are not an entirely no-go zone for the JSC.
The court relied on the High Court decision in Mboya, quoting its adoption of Yusuf Gitau Abdalla: judges are fallible and the remedies are appeal and review. The Mbalu Mutava decision shows the JSC's preliminary inquiry is designed only to determine whether a prima facie ground for removal exists, not to conduct a merit review or a formal hearing.
Scope of judicial immunity under article 160(5)
A judge remains immune for acts done in good faith in lawful performance of a judicial function; only conduct acting mala fides or unlawfully may trigger JSC proceedings.
Relying on Bellevue Development Company Ltd v Gikonyo, the court held that a judge remains unquestionably immune as long as he does not intentionally and plainly prevent litigants from enjoying their constitutional and statutory rights. The duty of a judge is to recognise that his decisions may err and to ensure that orders affecting important rights can be reviewed or appealed in another court.
Legal principles established
#- A judge is immune from discipline over judicial decisions as long as the conduct does not deliberately prevent parties from enjoying their rights; error is cured by appeal or review.
- Where a judge before the JSC raises threshold jurisdictional or competency objections, the JSC must consider and decide those objections before proceeding with the substantive complaint; failure to do so violates fair administrative action under article 47.
- The decision of the JSC to admit a complaint against a judge for hearing is an administrative decision amenable to judicial review under article 47 and the Fair Administrative Action Act.
Court orders
#- 1.A declaration be and is hereby issued that the failure by the respondent to determine the threshold objections by the petitioner, amounts to violation of the right to fair administrative action guaranteed under article 47 of the Constitution of Kenya and the Fair Administrative Action Act
- 2.The respondent is directed to consider and decide the threshold legal questions raised by the petitioner
- 3.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Articles 25, 28, 41, 47, 50, 159(1), 160(5), 168 and 171(1) of the Constitution of Kenya (petition challenging JSC's mandate over a judge)
Relief refused
#Declaration that the respondent lacks legal authority to entertain a petition or complaint challenging the validity of a decision of a judge
The court found the JSC may consider complaints but must first address threshold objections; it did not strike down the entire complaint
Order dismissing the proceedings in JSC Petition number 026 of 2022
The proceedings were not concluded and the court instead directed the JSC to decide the threshold objections
Costs of the petition to the petitioner
Each party was ordered to bear its own costs
Costs
Each party to bear own costs, considering the nature of the relationship between the petitioner and 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.
A declaration be and is hereby issued that the failure by the respondent to determine the threshold objections by the petitioner, amounts to violation of the right to fair administrative action guaranteed under article 47 of the Constitution of Kenya and the Fair Administrative Action Act.
The respondent is directed to consider and decide the threshold legal questions raised by the petitioner.
Considering the nature of the relationship between the petitioner and the respondent, each party to bear own costs.
The failure by the respondent to consider and decide on (or disclose the reasons thereof) on the threshold challenges raised by the petitioner constituted a fundamental legal misstep not in tandem with the right to fair administrative action as contemplated by article 47 of the Constitution and the Fair Administrative Action Act.
The respondent sits as a quasi-judicial tribunal when it sits to consider the removal from office of a judge.
The overriding principle is that a Judge is immune as long as his or her conduct does not deliberately prevent parties in litigation from enjoying their rights as guaranteed by law.
It is such a threshold decision by the respondent which should be subjected to judicial scrutiny and review, otherwise the court stands to usurp a jurisdiction of trier of facts at the first instance, which mandate does not belong to it.
Issues in the judgment
#The ruling under challenge is inconsistently dated in the judgment - the opening paragraph and relief clause say January 18, 2022 while the complaint narrative refers to 'an adverse ruling dated January 19, 2022' and 'rulings dated July 8, 2021 and January 19, 2021'.
The judgment inconsistently uses gendered pronouns for the petitioner, referring to 'the Hon. Judge Hellen wasilwa was biased' with 'his ruling' and 'Hon Judge from continued sitting' despite the petitioner being Justice Hellen Wasilwa.
The date of Justice Monica Mbaru's judgment is given as April 3, 2019 in the complaint but referred to elsewhere as 'April 13, 2019'.
The court references the Court of Appeal ruling in 'ELRC CC No E002/2022' in the petitioner's response and 'ELRC No E022 of 2022' in the respondent's affidavit, an inconsistent case number.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wasilwa v Judicial Service Commission; Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers & 3 others (Interested Parties) (Petition E237 of 2023) [2025] KEELRC 281 (KLR)", Case Analysis (2025). Petition (number not stated in judgment; lodged 16 December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/281/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.