Stella Atambo v The Hon. Chief Justice of the Republic of Kenya & Judicial Service Commission

disciplinary powers to the Chief Justice: the power to interdict, suspend, and reprimand judicial officers. The petitioner avers that the 1st respondent exercises the powers under Articles 171 and 172 of the Constitution as the beneficiary of a statutory delegation, as an agent of the principal defined by Parliament. In this capacity, the 1st respondent stands before the Court. The 1st respondent authored and served the two Notices to Show Cause under challenge in this petition as an exercise of power delegated by the 2nd respondent. The 2nd respondent’s locus in these proceedings is therefore inseparable from, and entirely derivative of, the delegated disciplinary authority the office carries. A delegate cannot further delegate. A higher authority entrusts power to a specific delegate; that trust is personal to that delegate. Whose capacity does the deponent swear? This is done for the 1 st respondent. In defence of the 1st respondent’s delegated power. This places before the court assertions of fact for the acts challenged in this petition. In doing so, the deponent does not step into his own shoes but into the shoes of the 1st respondent. The petitioner avers that the duty to answer for the delegated power is inseparable from the power itself. Power and accountability for its exercise are judicially conjoined. One cannot enjoy the power while delegating away the duty to account for its exercise. Where the 1 st respondent issued the NTSC under the JSC-delegated power, it did so alone, subject to judicial scrutiny. The deponent, Muciimi Mbaka, in the replying affidavit swears on behalf of the 1st respondent and states he is duly authorised to do so. However, the said authority has not been annexed to the affidavit. The petition concerns the petitioner’s livelihood, professional reputation, and a career built over decades. ELRC NAIROBI RULING PETITION NO. E125 OF 2026 2

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In view of the gravity of the petition, the court cannot preside over proceedings in which the 1st respondent answers this court through unverified authority. The court is invited to consider that if the challenged affidavit is permitted to stand, the petitioner is placed in the impossible position of cross-examining or seeking to interrogate the deponent in matters that are at their core, the personal acts and personal authority of the 1st respondent. The petitioner avers that the deponent cannot speak to the 1 st respondent’s state of mind, the basis for issuing the NTSC, or the understanding of the sources of the materials drawn upon. No prejudice will be visited against the respondents if the challenged affidavit is struck out. The 1st respondent remains at liberty to file a replying affidavit, and the orders sought should be issued. In reply, the 1st respondent filed Grounds of Opposition: 1. The petition subject to these proceedings is filed against the office of the Chief Justice as opposed to Honourable Justice Martha Koome in person, and there is therefore no legal requirement for the Honourable Chief Justice to swear a replying affidavit in a matter involving the exercise of the official function of the Office of the Chief Justice. 2. The deponent of the impugned affidavit is an officer serving within the Office of the Chief Justice who is familiar with the facts surrounding the petition and is therefore competent to swear the replying affidavit. 3. The purpose of an affidavit is to bring to the court’s attention facts that will enable the court to determine the dispute before it, and the affidavit filed on behalf of the 1st respondent does exactly that. The parties attended and agreed to file written submissions. The petitioner, as the applicant, submitted that the basis of the 1st Respondent’s presence in these proceedings is the exercise of delegated ELRC NAIROBI RULING PETITION NO. E125 OF 2026 3

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statutory power. Under Part IV, Paragraph 15 of the Third Schedule to the Judicial Service Act, the 2nd Respondent delegated specific disciplinary functions to the 1st Respondent. The 1st Respondent's locus in these proceedings is therefore inseparable from, and entirely derivative of, that delegated disciplinary authority. In the present proceedings, the court must interrogate: In whose capacity does the deponent, Muciimi Mbaka, swear? He swears in the capacity of the 1st Respondent. He swears in defence of delegated power. He asserts facts regarding the administrative acts impugned in this Petition. The petitioner submitted that in administrative law, the duty to account for the exercise of delegated power is an inseparable appendage of the power itself. One cannot, in law or in equity, enjoy and exercise delegated state power while delegating away the duty to answer to a court of law for its exercise. In Attorney General & 2 others v Independent Policing Oversight Authority & another [2015] KECA 734 (KLR), the court held that Delegation is the assignment of responsibility or authority to another person, usually a subordinate or an officer of lower rank. The person delegating must remain fully accountable for the outcome of the delegated work. One can delegate authority but not responsibility. In Anthony Otiende Otiende v Public Service Commission & 2 others [2016] KEHC 938 (KLR), the court held that a common law presumption exists against sub-delegation. Under Articles 10, 47, 73, and 232 of the Constitution, public officers are bound by the national values of transparency, integrity, and accountability. When the 1st Respondent issues NTSC as the JSC’s delegate, the office is obligated to answer this Court's interrogation of those acts. At Paragraph 1 of the Impugned Affidavit, the deponent, Muciimi Mbaka, purports to swear on behalf of the 1st Respondent and asserts that he is "duly authorised" to do so. However, the affidavit annexes no such ELRC NAIROBI RULING PETITION NO. E125 OF 2026 4

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authority. While an officer of a corporate body may depose on behalf of a corporation pursuant to a board resolution, a natural person or sole statutory officer sued in their specific capacity cannot be represented by a proxy deponent without written proof of authorisation. This renders the affidavit incompetent. In Oduor v Afro Freight Forwarders (2007) 2KLR 652, the court held that a Replying Affidavit sworn by Oruko Nyawida, Advocate, as Counsel for the Plaintiff, did not, by virtue of his role, authorise him to swear an affidavit. He had no authority from the plaintiff to swear the said affidavit. The Replying Affidavit was struck out. Order 19, Rule 3(1) of the Civil Procedure Rules, explicitly commands: Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove... This rule is complemented by the rules of evidence under the Evidence Act, which strictly exclude hearsay evidence in contentious substantive applications. The core issues raised in the Petition directly challenge the 1st Respondent’s personal decision-making process, including the administrative basis and objective evaluation that led to the issuance of the NTSC. Muciimi Mbaka cannot speak to such matters, and He was not the decision-maker. Under cross-examination or interrogation by this Court, the deponent would be incapable of answering for the 1st respondent’s personal acts. In Mbugua & Mbugua Advocates v Kenindia Assurance Co. Ltd [2014] KEHC 1543 (KLR), the court held that where an affidavit contains averments of apparent importance in the proceedings but which transgress the requirements of Order 19 rule 3(1). The Replying Affidavit that fails to comply thus is therefore a nullity in evidence. The 1st Respondent remains fully at liberty, and under a duty, to file a proper Replying Affidavit to answer the Petition on merits. Allowing the Impugned Affidavit to stand would signal a troubling precedent that a public officer exercising delegated powers can shield themselves from ELRC NAIROBI RULING PETITION NO. E125 OF 2026 5

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scrutiny by hiding behind proxies. That would create a fundamental irregularity at the heart of these proceedings, an injury that no subsequent order or award of costs could remedy. The 1st respondent submitted that the petitioner conflates two entirely distinct legal concepts: the exercise of a delegated statutory power to make a decision, and (b) the giving of evidence, after the fact, explaining and defending a decision already made. The doctrine of delegatus non potest delegare concerns exclusively the former. It prevents a statutory delegate from re-assigning the power to decide or act to another person, so that the decision is no longer made by the person Parliament or the delegating authority intended to make it. In this case, the 1st Respondent fully and exclusively exercised the disciplinary power conferred on it under Part IV, Paragraph 15 of the Third Schedule to the Judicial Service Act when the NTSC were issued. No part of that decision-making power has been, or is being, re-delegated to Muciimi Mbaka. He signs nothing, decides nothing, and exercises no disciplinary power whatsoever. He places before the Court, on oath, an account of an administrative process and record already concluded. The distinction is not academic. Different rules govern the exercise of a statutory power and the mechanics of litigation. The 1st Respondent has not abdicated responsibility for the NTSC and remains fully answerable for that decision. Responsibility is a legal and constitutional attribute that continues to rest with the 1st Respondent regardless of who is authorised to place the administrative record before the Court on her behalf. Institutional litigation representation of this kind is a routine incident of how public offices, including constitutional offices, respond to legal proceedings; it does not offend the maxim relied upon by the Applicant, which targets the transfer of decisional power, not evidentiary representation. ELRC NAIROBI RULING PETITION NO. E125 OF 2026 6

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In Anthony Otiende Otiende v Public Service Commission & 2 others [2016] KEHC 938 (KLR), cited by the petitioner, the case concerned the sub-delegation of a statutory function itself, not the separate question of who may swear an affidavit describing a power already exercised by the correct officer. The case is accordingly distinguishable and does not assist the argument. The objections disclose no violation of delegatus non potest delegare. The 1st respondent submitted that the petitioner’s assertion of authority is a “bare assertion” unsupported by any annexed instrument, but this does not render the Impugned Affidavit a nullity. Order 4 Rule 1(4) of the Civil Procedure Rules governs verifying affidavits sworn by officers of corporations at the commencement of a suit. The Impugned Affidavit is not a verifying affidavit under Order 4; it is a Replying Affidavit responding to a Petition, filed on behalf of a constitutional officeholder sued in official capacity in respect of official acts. The analogy the Applicant draws from corporate practice is therefore imperfect. Order 19 Rule 7 of the Civil Procedure Rules expressly empowers the Court to receive an affidavit: notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof. A defect going to the deponent's stated capacity or authority is precisely the kind of formal irregularity this rule contemplates the Court curing, rather than a ground for wholesale rejection. The source of a deponent's authority to depose on an institution's behalf need not invariably rest on a separate written instrument; it may be demonstrated by the deponent's official position and personal involvement in the very administrative process the affidavit describes. Paragraph 1 of the Impugned Affidavit discloses that Mr Mbaka is an ELRC NAIROBI RULING PETITION NO. E125 OF 2026 7

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Advocate of the High Court of Kenya serving as Senior Legal Counsel in the Office of the Chief Justice. That is, an institutional legal officer within the 1st Respondent's own office, and not an outsider or a stranger to the matter. He is not a proxy borrowed from elsewhere; he is an officer of that very office who, by the nature of his role, is conversant with the administrative record concerning the impugned NTSC. That official position is itself a legitimate source of both his personal knowledge and his standing to depose on the 1st Respondent's behalf. The 1st Respondent submitted that should the court require a more formal instrument of delegation, the appropriate and proportionate course is to grant leave for a short supplementary affidavit exhibiting it and not to strike out the substantive response to the Petition in its entirety. The cited case of Oduor v Afro Freight Forwarders (2007) 2 KLR 652 concerned an advocate on record swearing an affidavit for his own client. This scenario raises distinct concerns about an advocate improperly assuming the role of witness in a matter he is conducting. Mr Mbaka is not counsel on record for the 1 st Respondent conducting this litigation; he is an officer deposing to facts within his official knowledge. Order 19 Rule 3(1) of the Civil Procedure Rules provides that affidavits shall be confined to facts within the deponent's own knowledge, but this is expressly subject to a proviso: Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof. The present application is itself interlocutory in character. To the extent the Impugned Affidavit contains statements of information and belief drawn from the official administrative record, with the source of that information evident on the face of the affidavit, it falls squarely within the proviso and does not offend the Rule. ELRC NAIROBI RULING PETITION NO. E125 OF 2026 8

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This is not a matter of inference. Paragraph 3 of the Impugned Affidavit itself expressly undertakes compliance with Order 19 Rule 3(1), stating that the facts deponed to are derived partly from the deponent's own knowledge acquired from his official mandate, and that to the extent that any statement made herein is based on information or belief, the deponent has disclosed hereunder the source or ground... of such information or belief. Substantively, the great majority of the Impugned Affidavit does not touch the 1st Respondent's private mental impressions at all. Paragraphs 4 to 9 merely recite the constitutional and statutory framework governing the office of the Chief Justice under Article 161(2)(a) of the Constitution and the Judicial Service Act. These are matters of law, not fact, and cannot be hearsay. The remaining paragraphs narrate the administrative process and record leading to the NTSC, corroborated by annexed correspondence concerning a comparator officer's response to a similar Notice. Order 19 Rule 3(2) of the Civil Procedure Rules supplies the answer: the sanction for an affidavit that unnecessarily set[s] forth matters of hearsay or argumentative matter is an order as to costs against the filing party, not automatic exclusion of the affidavit, still less its wholesale striking out. Order 19 Rule 6 of the Civil Procedure Rules confines the Court's power to matters that are scandalous, irrelevant, or oppressive. The cited case of Mbugua & Mbugua Advocates v Kenindia Assurance Co. Ltd [2014] KEHC 1543 (KLR) speaks to the retention of specific offending averments being oppressive, not to the affidavit as a whole falling away. This position is reiterated in Odinga & another v Independent Electoral and Boundaries Commission & 8 others (Presidential Election Petition 5 of 2020) [2022] KESC 47 (KLR) (29 August 2022) (Ruling), where an application to strike out affidavits alleged to contain inadmissible hearsay was dismissed as premature. The Court held: … only proper that the court be allowed to consider the totality of the evidence before it and, as guided by the rules of evidence, be ELRC NAIROBI RULING PETITION NO. E125 OF 2026 9

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able to discern the probative value and evidentiary threshold of each of the evidence adduced by each party, and that striking out affidavits: at this early juncture in isolation... is premature. If the Court finds any specific averment objectionable, it should expunge that averment alone at the substantive hearing, where its weight can be assessed together with the rest of the record, rather than striking out the 1st Respondent's entire response at this preliminary stage. Striking out the Impugned Affidavit in its entirety would leave the Petition unanswered on the merits at this stage, notwithstanding that a substantive response exists on the record. This would occasion real prejudice to the 1st Respondent's right to a fair hearing under Article 50 of the Constitution, without any corresponding benefit to the petitioner, who suffers no prejudice from the continued presence on the record of an affidavit she remains entirely free to test through cross-examination or by application for further particulars. The 1st Respondent remains fully accountable for the decisions impugned in the Petition and does not resile from that accountability. What is opposed is the Applicant's attempt to convert a curable, at most partial, evidentiary objection into a basis for striking out the entirety of the 1 st Respondent's defence before the merits are ever heard. There is no response or written submissions by the 2nd Respondent. Determination The petitioner has challenged the Replying Affidavit sworn by Muciimi Mbaka for the 1st Respondent. The challenge is that he lacks the standing, authority, and mandate to delegate to him the authority to reply, as done in his Reply Affidavit to the petition and the Notice of Motion by the petitioner. The petitioner has relied on Articles 10, 47, 73, and 232 of the Constitution, Order 19, Rule 3(1) of the Civil Procedure Rules and the Evidence Act. ELRC NAIROBI RULING PETITION NO. E125 OF 2026 10

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To begin with, the office of the 1 st respondent is a constitutional office established under Article 161(1) of the Constitution. It is held in perpetuity. The person holding the office and the office are two distinct entities. Additionally, this is an employment dispute. At the core of Muciimi Mbaka's responses in his Replying Affidavit are workplace and employment issues arising from the NTSC issued by the 1st respondent to the petitioner. Unlike other disputes regulated under the Civil Procedure Act and the Rules thereto, claims, petitions or judicial review applications and proceedings before the court are governed by a distinct regime of rules: the Employment and Labour Relations Court (Procedure) Rules. Accordingly, the rules of evidence under the Civil Procedure Act and the Evidence Act do not apply before the court. The petitioner is defined as a judicial officer. An employee of the judiciary. The petition is filed against the office of the 1 st respondent and the JSC, 2nd respondent. The petitioner chose the respondents. Under the Employment and Labour Relations Court (Procedure) Rules, a respondent is defined and allowed to attend court in that capacity. Fundamentally, under the Employment and Labour Relations Court Act, the Employment Act and the Labour Relations Act, an employer is given a consistent definition: “employer” means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company; The employer, such as the respondents, may appear before the court through its agent, foreman, manager, or factor. Although this is an ELRC NAIROBI RULING PETITION NO. E125 OF 2026 11

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employment dispute and the petitioner chose to bring the matter through a constitutional petition, the rules remain the same. However, as a best practice, as in other superior courts, the person attending for an employer, such as Muciimi Mbaka in his Replying Affidavit, should attend under the employer's written authority. The failure to file the authority with the Replying Affidavit is not fatal. This can be cured accordingly to allow the court to hear the issues in dispute under the petition. As addressed above, the petitioner chose to move the court by petition. The petitioner defined the respondents. A Replying Affidavit has been filed unlike where a Memorandum of Claim would have required a response. The orders sought in the petition are audited while addressing the instant application; the parties must address the court on whether this is a proper petition under the Employment and Labour Relations Court Act, the Employment Act, and the Employment and Labour Relations Court (Procedure) Rules. The interim orders shall be extended for 7 days only to allow the parties to address this aspect of the petition. Accordingly, the application dated 21 May 2026 is without merit and is hereby dismissed. Save that the 1 st respondent shall file a Supplementary Affidavit attaching the necessary authority to its officer attending in these proceedings. The court invites the parties to address it on whether this is a proper petition. Interim orders extended for 7 days. Delivered in open court this 30th day of September 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ELRC NAIROBI RULING PETITION NO. E125 OF 2026 12

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…………………………………………… ……… ELRC NAIROBI RULING PETITION NO. E125 OF 2026 13 and …………………………………..

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