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Supreme CourtPartially AllowedPetition 34 of 2014· [2022] KESC 5 (KLR)

Shollei v Judicial Service Commission & another

Supreme Court of Kenya
17 February 2022
14,678 words in judgment
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AI-assisted case brief
·~59 min to read original · ~4 min brief

The bottom line

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JSC must give reasons for decisions and grant public hearings in disciplinary cases.

What this practically means

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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

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The Supreme Court of Kenya partially allowed an appeal by Gladys Boss Shollei, the former Chief Registrar of the Judiciary, against the Court of Appeal's decision which had overturned the Industrial Court's judgment in her favour. The dispute arose from her removal from office by the Judicial Service Commission (JSC) following disciplinary proceedings. The Supreme Court first confirmed its jurisdiction under Article 163(4)(a) of the Constitution, finding that the Court of Appeal had interpreted and applied several constitutional provisions. On the merits, the Court held that 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. The Court also found that JSC's refusal to grant a public hearing was based on vague reasons, further violating Article 47. Critically, the Court declared section 23 of the Third Schedule to the Judicial Service Act unconstitutional for failing to meet the criteria for limitation of rights under Article 24(2) of the Constitution, as it did not specifically express an intention to limit the right to access information. However, the Court rejected the appellant's claim of bias, finding that the emails relied upon were not authenticated. The Court also found that the appellant's right to a fair hearing under Article 50 was not violated on the issue of bias. The Supreme Court set aside the Court of Appeal's judgment and upheld the Industrial Court's judgment only to the extent that the appellant's rights to fair administrative action and access to information were violated. The matter was remitted to the Employment and Labour Relations Court for assessment of damages. The Court issued no order as to costs. The judgment also set out guiding principles for JSC disciplinary proceedings, including requirements for notice, public hearings, reasons for decisions, and access to documents.

Key legal issues

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01

Whether the appeal met the constitutional threshold under Article 163(4)(a) for appeals as of right involving interpretation or application of the Constitution.

Holding

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.

Reasoning

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.

02

Whether the appellant's right to fair administrative action under Article 47 was violated by JSC's refusal to give reasons for her removal.

Holding

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.

Reasoning

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.

03

Whether the appellant's right to a fair hearing under Article 50 was violated by JSC's refusal to grant a public hearing.

Holding

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.

Reasoning

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.

04

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.

Holding

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.

Reasoning

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.

05

Whether the appellant's right to a fair hearing under Article 50 was violated due to alleged bias by JSC Commissioners.

Holding

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.

Reasoning

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

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  • 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

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  1. 1.The appeal dated October 30, 2014 is hereby allowed.
  2. 2.The judgment of the Court of Appeal dated September 19, 2014 be set aside.
  3. 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. 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. 5.There shall be no orders as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 163(4)(a)
  • Constitution of Kenya, 2010Article 163(4)(b)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 50(2)
  • Constitution of Kenya, 2010Article 35
  • Constitution of Kenya, 2010Article 236(b)
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 164(3)
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 172
  • Constitution of Kenya, 2010Article 171
  • Constitution of Kenya, 2010Article 240
  • Constitution of Kenya, 2010Article 234
  • Constitution of Kenya, 2010Article 2(3)
  • Constitution of Kenya, 2010Article 20(3)
  • Constitution of Kenya, 2010Article 23(1) & (3)
  • Constitution of Kenya, 2010Article 165(3)(b)
  • Constitution of Kenya, 2010Article 259(11)
  • Constitution of Kenya, 2010Article 252
  • Constitution of Kenya, 2010Article 27(1)
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 79
  • Constitution of Kenya, 2010Article 157
  • Constitution of Kenya, 2010Article 226(2) & (3)
  • Constitution of Kenya, 2010Article 161
  • Constitution of Kenya, 2010Article 227
  • Constitution of Kenya, 2010Article 10(2)(a)(c)
  • Constitution of Kenya, 2010Article 232(1)(e)(f)
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 73
  • Constitution of Kenya, 2010Article 159
  • Judicial Service Act, 2011Section 12
  • Judicial Service Act, 2011Section 32
  • Judicial Service Act, 2011Third Schedule, section 23
  • Judicial Service Act, 2011Third Schedule, regulation 25
  • Industrial Court Act, 2011Section 12(3)(viii)
  • Industrial Court Act, 2011Section 17(2)
  • Appellate Jurisdiction ActSection 3(1)
  • Supreme Court ActSection 15(1)
  • Fair Administrative Action Act, 2015Section 6
  • Access to Information Act, 2016Section 6(h) and (i)
  • Public Finance Management Act, 2012
  • Public Procurement and Disposal Act, 2005
  • Court of Appeal RulesRule 29

Cases cited (41)

  • Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another
    SC Pet No 3 of 2012; [2012] eKLR
  • Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others
    SC Pet No 10 of 2013
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    SC App No 5 of 2014; [2014] eKLR
  • Hermanus Phillipus Steyn v Giovanni Gnecchi – Ruscone
    Supreme Court application No 4 of 2012
  • Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others
    SC Petition No 18 of 2014 as consolidated with Petition No 20 of 2014; [2014] eKLR
  • Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others
    Petition No 4 of 2012; [2014] eKLR
  • Erad Suppliers and General Contractors Limited v National cereals and Produce Board
    SC Petition No 5 of 2012; [2012] eKLR
  • Peter Oduor Ngoge v Francis Ole Kaparo & 5 others
    SC Petition No 2 of 2012; [2012]
  • Simon Rotich Ruto v Judicial Service Commission & another
    Petition No 48 of 2019: [2019] eKLR
  • Bildad Rogoncho Kamwele v Judicial Service Commission
    ELRC Petition No 103 of 2019; [2020] eKLR
  • JNR v Judicial Service Commission
    ELRC Petition No 92 of 2019; [2019] eKLR
  • Jack Mukhongo Munialo & 12 others v. Attorney General & 2 others
    HC Petition No 182 of 2017; [2017] eKLR
  • Diana Kethi Kilonzo & another v Independent Electoral & Boundaries Commission & 10 others
    [2013] eKLR
  • Nairobi Law Monthly v Kengen
    Nairobi High Court Petition No 278 of 2011[Unreported]
  • Ndiritu v Ropkoi & Another
    [2005] 1 EA 334
  • Tanganyika Farmers Association Ltd v Unyamwezi Development Corporation
    [1960]EA 620
  • Alwi Abdulrehman Saggaf vs. Abed Ali Algeredi
    [1961] 767
  • Captain Harry Gandy v Caspair Air Charters Ltd
    [1956] EACA 139
  • Blay v Pollard and Morris
    [1930] 1 KB 682
  • Nairobi City Council v Thabiti Enterprises
    [1995-98] EA 231
  • Regina vs Medical Appeal Tribunal (Midland Region) ex parte Carrarin
    [1966]1 WLR
  • Re Poyster and Mills Arbitration
    [1964] 2 QB 467
  • Findlay v United Kingdom
    (1997) 24 EHRR 221
  • Regina v Boyd
    [2002] UHHL 31
  • Magil v Porter
    [2001] UKHL 67
  • S and others v Van Rooyen and others (General Council of the Bar of South Africa Intervening)
    (CCT21/01) [2002] ZACC 8
  • R v Sussex Justices ex parte McCarthy
    [1942] 1 KB 256
  • Legasi v Civil Service Commission
    GR No L-721190
  • Brummer v Minister for Social Development
    (2009) (II) BCLR 1075 (CC)
  • SA Airlink (PTY) Limited v Mpumalanga Tourism and Parks Agency
    Case No 01011/12
  • Syndicat des Employes de Production du Quebec et de L'acadie v Canada (Canadian Human Rights Commission)
    1989 CanLII 44
  • Engen Petroleum Limited v Commissioner of Conciliation Mediation and Arbitration & others
    (JA12/05) [2007] ZALAC 5
  • Knight v Indian Head School Division No 19
    [1990] 1 SCR 653
  • BA Imonikhe v Unity Bank PLC
    SC 68 of 2003
  • Selvarajan v Race Relations Board
    [1976] 1 All ER, 12 at 19
  • Regina v Metropolitan Police Commissioner ex Parte Parker
    [1953] 1 WLR 1150
  • Eckervogt v British Columbia
    [2004] BCCA 398 (CanLII)
  • Committee for Justice and Liberty v National Energy Board
    1976 CanLII 2 (SCC), [1978] 1 SCR 369
  • Regina v Amber Valley District Council ex parte Jackson
    [1985] 1 WLR 298
  • Unitas Hospital v Van Wyk and Another
    (231/05) [2006] ZASCA 34
  • Steel and Morris v. United Kingdom
    [2005] ECHR 103
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

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2014-09-19
Court of Appeal delivered judgment against Gladys Boss Shollei.
2014-10-30
Gladys Boss Shollei filed appeal to the Supreme Court.
2023-07-28
Supreme Court allowed the appeal, set aside Court of Appeal judgment, and remitted case to Employment Court for assessment of reliefs.

Practical implications

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For lawyers

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.

For businesses

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.

For individuals

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

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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)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.