Shollei v Judicial Service Commission & another
The bottom line
#JSC must give reasons for decisions and grant public hearings in disciplinary cases.
What this practically means
#The Supreme Court ruled that the Judicial Service Commission violated Gladys Boss Shollei's rights by refusing to give her written reasons for her removal and by denying her a public hearing without proper justification. The Court declared a section of the Judicial Service Act unconstitutional for failing to meet constitutional standards for limiting rights. The case now goes back to the Employment Court to determine appropriate remedies.
Executive summary
#Key legal issues
#Whether the appeal met the constitutional threshold under Article 163(4)(a) for appeals as of right involving interpretation or application of the Constitution.
The appeal was properly before the Supreme Court because the Court of Appeal had interpreted and applied several constitutional provisions, including Articles 47, 50, 35, and 236(b), in arriving at its decision.
The Supreme Court examined the record and found that the Court of Appeal had interpreted and applied Articles 164(3)(b), 162(2)(a), 172(1)(c), 259(11), 252, 27(1), 35(1)(b), 47(1) & (2), 50(1) & (2), and 236(b) of the Constitution. The Court applied the test from Lawrence Nduttu and Gatirau Peter Munya, holding that an appeal under Article 163(4)(a) requires that the Court of Appeal's reasoning involved constitutional interpretation or application, which was satisfied here.
Whether the appellant's right to fair administrative action under Article 47 was violated by JSC's refusal to give reasons for her removal.
The appellant's right to fair administrative action under Article 47 was violated because JSC refused to give her written reasons for her removal without justification, and the Court of Appeal erred in finding that a press statement sufficed.
The Court found that the appellant had discharged her burden of demonstrating that her rights were adversely affected by requesting reasons via a letter. JSC's reliance on section 23 of the Third Schedule to the Act was unfounded because that provision was declared unconstitutional for failing to meet the criteria under Article 24(2) of the Constitution. The Court held that JSC should have enclosed its reasons in the removal letter, and its refusal was without justification.
Whether the appellant's right to a fair hearing under Article 50 was violated by JSC's refusal to grant a public hearing.
The appellant's right to fair administrative action under Article 47 was violated because JSC's refusal to grant a public hearing was based on vague reasons ('internal process' and 'common practice'), which were insufficient. The Court of Appeal's justification was also rejected as it was not the reason given by JSC.
The Court distinguished between the automatic right to a public hearing before a court and the discretionary right before other bodies. It held that JSC's reasons for denying the public hearing were vague and not sufficient. The Court of Appeal had given different reasons (potential prejudice to investigations) which were not those given by JSC in its ruling. Therefore, the refusal violated Article 47.
Whether section 23 of the Third Schedule to the Judicial Service Act is constitutional as a limitation on the right to access information under Article 35.
Section 23 of the Third Schedule to the Judicial Service Act is unconstitutional because it does not meet the criteria for limitation of rights under Article 24(2) of the Constitution.
The Court applied Article 24(2), which requires that any legislation limiting a right enacted after the effective date must specifically express the intention to limit the right and the nature and extent of the limitation. The Court found that section 32 of the parent Act, which authorises the Third Schedule, does not express any intention to limit the right to information. Therefore, the vague provision in the schedule cannot justify a limitation of a constitutional right.
Whether the appellant's right to a fair hearing under Article 50 was violated due to alleged bias by JSC Commissioners.
The appellant's right to a fair hearing was not violated on the ground of bias because the emails relied upon to allege bias were not authenticated, and counsel admitted they could be true or fake.
The Court reviewed the record and noted that counsel for the appellant admitted before JSC that he could not authenticate the emails. Without authentication, it was impossible to conclude that there was actual or reasonable apprehension of bias. The Court agreed with the Court of Appeal's finding on this point.
Legal principles established
#- Section 23 of the Third Schedule to the Judicial Service Act is unconstitutional for failing to meet Article 24(2) criteria for limiting rights.
- The right to a public hearing is automatic only before courts; other bodies may refuse but must give specific, justifiable reasons.
- JSC must comply with Article 47 and the Fair Administrative Action Act in disciplinary proceedings, including giving detailed reasons for adverse decisions.
- An employee facing JSC discipline must be given a public hearing if requested; refusal requires reasons given to the employee.
- A press statement does not satisfy the requirement to give written reasons for removal under Article 47.
Court orders
#- 1.The appeal dated October 30, 2014 is hereby allowed.
- 2.The judgment of the Court of Appeal dated September 19, 2014 be set aside.
- 3.The judgement of the Industrial Court is upheld to the extent that the appellant’s right to fair administrative action and right to access to information was violated.
- 4.These proceedings are hereby remitted to the Employment and Labour Relations Court, with instructions that appropriate reliefs be assessed and awarded in accordance with this judgment and the pleadings at the Employment and Labour Relations Court.
- 5.There shall be no orders as to costs.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No 50 of 2014
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Key timeline
#Practical implications
#Challenge vague JSC rules on rights
When representing clients before JSC, argue that any refusal of a public hearing must be accompanied by specific, written reasons given to the employee. The old practice of citing 'internal process' or 'common practice' is no longer sufficient. Also, section 23 of the Third Schedule is now unconstitutional, so you cannot rely on it to withhold information.
Review internal disciplinary procedures
If your organization conducts disciplinary hearings, ensure you give employees written reasons for any adverse decision and provide a public hearing if requested, unless you can justify refusal with specific reasons. Vague policies or common practices will not satisfy constitutional standards. Document all reasons given to the employee.
Demand reasons and public hearings
If you face disciplinary proceedings before any public body in Kenya, you have the right to request a public hearing and to receive written reasons for any adverse decision. If the body refuses, insist on receiving specific, written justification. You can cite this case to support your demand.
Frequently asked questions
#What did the Supreme Court decide in Gladys Boss Shollei v Judicial Service Commission Kenya?+
The Supreme Court ruled that JSC violated Shollei's rights by refusing to give her written reasons for removal and by denying a public hearing without proper justification. The Court also declared a section of the Judicial Service Act unconstitutional.
Does JSC have to give reasons for removing a judge in Kenya?+
Yes. The Supreme Court held that JSC must give detailed written reasons for any adverse decision in disciplinary proceedings. A press statement is not enough. This is required under Article 47 of the Constitution and the Fair Administrative Action Act.
Can I demand a public hearing before JSC in Kenya?+
Yes, if you are an employee facing JSC disciplinary proceedings, you can request a public hearing. JSC must grant it unless it gives you specific, justifiable reasons for refusing. Vague reasons like 'internal process' are not enough.
Is section 23 of the Judicial Service Act still valid in Kenya?+
No. The Supreme Court declared section 23 of the Third Schedule to the Judicial Service Act unconstitutional because it does not meet the constitutional requirements for limiting rights under Article 24(2). It cannot be used to justify withholding information.
Later judgments citing this (18)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutea v Halake & 2 others (Environment and Land Appeal E002 of 2026) [2026] KEELC 4315 (KLR)[2026] KEELC 4315 (KLR)11 Jun 2026applied
- Republic v Deputy County Commissioner Tigania Central & 3 others; Gatebia (Ex parte Applicant) (Environment and Land Judicial Review Case E015 of 2025) [2026] KEELC 1303 (KLR)[2026] KEELC 1303 (KLR)27 Feb 2026
- Gikenyi v County Government of Nakuru & 4 others[2026] KESC 12 (KLR)30 Jan 2026followed
- Cherop v Judicial Service Commission (Cause E037 of 2024) [2025] KEELRC 2844 (KLR)[2025] KEELRC 2844 (KLR)23 Oct 2025
- Karimi v Tradco Services Limited (Cause E096 of 2023) [2025] KEELRC 2660 (KLR)[2025] KEELRC 2660 (KLR)2 Oct 2025applied
- Mwangi v Lake Basin Development Authority (Cause E001 of 2025) [2025] KEELRC 2602 (KLR)[2025] KEELRC 2602 (KLR)29 Sept 2025
- Kamande v Judicial Service Commission[2025] KESC 48 (KLR)15 Aug 2025followed
- Judicial Service Commission & another v LMN[2025] KESC 53 (KLR)15 Aug 2025followed
- National Social Security Fund Board of Trustees v Micro City Computers Limited (Civil Application E045 of 2024) [2025] KECA 1313 (KLR)[2025] KECA 1313 (KLR)18 Jul 2025
- FAAF v RFM & 2 others[2025] KESC 45 (KLR)30 Jun 2025
- Dzila v Kwale County Assembly Service Board & 6 others[2025] KESC 33 (KLR)23 May 2025distinguished
- Sholei v Judicial Service Commission (Petition 39 of 2013) (27 March 2025) (Quantum Judgment) [2025] KEELRC 960 (KLR)[2025] KEELRC 960 (KLR)27 Mar 2025
- Nyaga v Nyaga (Environment and Land Miscellaneous Application E009 of 2024) [2025] KEELC 3288 (KLR)[2025] KEELC 3288 (KLR)26 Mar 2025
- Kental Enterprises Ltd v Attorney General & 4 others (Petition 2 of 2019) [2025] KEELC 1470 (KLR)[2025] KEELC 1470 (KLR)24 Mar 2025
- Wahome v Judicial Service Commission (Employment and Labour Relations Petition E094 of 2023) [2023] KEELRC 3058 (KLR)[2023] KEELRC 3058 (KLR)28 Nov 2023
- Chepkonga v Kenya Airways PLC (Cause E549 of 2023) [2023] KEELRC 2186 (KLR)[2023] KEELRC 2186 (KLR)20 Sept 2023
- Gatimbu v University of Embu & another (Judicial Review E001 of 2022) [2023] KEELRC 126 (KLR)[2023] KEELRC 126 (KLR)26 Jan 2023
- Juma & 5 others v Kenya Pipeline Company Limited (Cause 80, 81, 82, 83, 84 & 85 of 2017 (Consolidated)) [2022] KEELRC 69 (KLR)[2022] KEELRC 69 (KLR)13 May 2022
Cite this brief
#Cite this brief
Caselaw, "Shollei v Judicial Service Commission & another", Case Analysis (2022). Petition 34 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/5/eng@2022-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.