The Petitioner, a former High Court judge had been appointed in 1995 and had served in various High Court stations. He was suspended in 2003 following the recommendations of a special committee that had been set up to investigate the conduct of judicial officers (popularly known as the Ringera committee). The report of the Committee informed the Chief Justice’s decision to recommend to the President that a tribunal be established to investigate the conduct of judicial officers adversely mentioned therein. Acting upon the said recommendation, the President removed the Petitioner from the office of Puisne Judge of the High Court of Kenya, through a Gazette Notice No 6236 dated 15/7/2008, which was published in the Kenya Gazette dated 17/7/2008.

The Judge consequently moved the High Court through a Constitutional Petition under section 84 of the Constitution of Kenya (Repealed), alleging that his fundamental rights and freedoms under the Constitution had been violated. Five out of the seven respondents in the Petition were members of the tribunal that investigated the Judge’s conduct.

The Petitioner argued that his constitutional rights had been violated at every stage of the process including that he had not been informed in time of the allegations that had been made against him and that he was subjected to degrading treatment, having learnt of allegations made against him from the press and junior officers. He asserted that offices of the Judge were constitutional offices enjoying constitutional privilege and judges were therefore entitled to some decorum in the manner in which they were treated.

Further, the Petitioner argued that he had been discriminated against and accused the tribunal that investigated him of ‘intellectual dishonesty’ on the basis that he was treated differently from the other judges who had been suspended at the same time as himself, because no standard of proof had been established in his case as was the case with the other judges. Furthermore, the Petitioner added that he had been unjustifiably discriminated against as since his suspension, he had had his salary, and benefits including official vehicles and security detail withdrawn unlike the other judges.

In support of these claims, he also asserted that since the secretary to the tribunal was also the assisting counsel, there was no impartiality as the secretary was involved in both the formulating of the charges and the preparation of the final report. According to the Petitioner, the tribunal acted as the investigator, the prosecutor, the jury and the Judge.

The Petitioner also submitted he believed that the person best placed to tell the tribunal where the complaints emanated from was the Chief Justice and in the circumstances, the Chief Justice was not only a necessary witness, but a critical witness. He therefore reiterated that the tribunal should have summoned the Chief Justice.

The Petitioner claimed that for the seven years he had been under suspension, he had suffered immeasurable humiliation and indignity and asked the Court to find that he was entitled to compensation in amounts exceeding what would ordinarily be awarded for character defamation for the pain and suffering.

State counsel representing the Respondents, defended the whole process terming it Constitutional.

The Respondents further argued that the Constitution did not have any provisions requiring the Chief Justice to show to the Judge the allegations made against him before he could recommend to the President that a tribunal be set up. Moreover, the Respondents argued, that since the Petitioner claimed he did not have notice of the Complaints forming the basis of the tribunal’s recommendation to the President, he could not say that the complaints investigated by the tribunal were not the same as those which formed the basis of the Chief Justice’s recommendations to the President.

As regards the alleged failure by the tribunal to call crucial witnesses, the Respondents submitted that the Petitioner had failed to demonstrate how the exclusion of the Chief Justice from the tribunal, hindered the work undertaken by the said tribunal. In any event, submitted the Respondents, the Petitioner could have requested the Chief Justice to testify on his behalf. He could not therefore complain, when he had an avenue through which he could have got the Chief Justice or any other critical witness to testify.

The Respondents rejected the Petitioner’s assertion that he was subjected to degrading treatment arguing that since the investigations had been undergoing, it was in order for the Petitioner to be deprived of some of his rights. The Respondents further asserted that the tribunal was not obliged to apply standards consistent with those applied by the tribunals which had investigated the other two judges as it had a right to apply standards dictated by the circumstances of the particular case before them.

Furthermore, the Respondents argued that they had been irregularly enjoined to the Petition as they constituted the tribunal whose mandate had ceased upon presentation of its report to the President. They argued that the real person against whom the Petitioner actually sought relief was the president who had removed the Judge from office and that the Petition against the Respondents was a mask to circumvent section 14(2) of the Repealed Constitution, which gave the President immunity from criminal and civil proceedings while he was in office.

Issues

i. Whether failure of judge to be given prior notice of allegations against him by the Chief Justice violated constitutional rights.

ii. Whether the making of the representation and the appointment of the Tribunal was unconstitutional.

iii. Whether the Court had power to order the judge to be reinstated to office.

iv. Whether under the rules of natural justice and legitimate expectation the Judge who was the subject of the representation should be accorded an opportunity to respond to the allegations against him before the representation was made.

v. Whether there was a constitutional provision empowering the Court to order the revocation or annulment or recall of the order for removal.

Constitutional law - Constitutional Petition - breach of fundamental rights and freedoms - suspension of judge on grounds of corrupt conduct - corrupt conduct based on ‘Ringera Committee’s’ report - whether failure of judge to be given prior notice of allegations against him by the Chief Justice violated constitutional rights – alleged discrimination of petitioner as against other judges - appellate jurisdiction of the Court - public policy verses preservation of individual rights and freedoms - power to annul or revoke presidential actions -whether court had power to order judge to be reinstated to office - the Evidence Act (cap 80) - the Judicature Act (cap

8) - Constitution of Kenya.

Constitutional law - Judicial Review vis a vis constitutional reference - where constitutional reference brought long after conclusion of tribunal process - limitation of time in various circumstances - where petition was brought ten months after conclusion of tribunal – appellate jurisdiction of court - powers of the constitutional court to reject or admit such an application

Judicial Officer – judge - discipline and removal of judges – disciplinary procedure – power of the Chief Justice to make a representation to the President that the question of the removal of a judge ought to be investigated – how such power is to be exercised – role of the Judicial Service Commission before such a power is exercised – whether under the rules of natural justice and legitimate expectation the Judge who is the subject of the representation should be accorded an opportunity to respond to the allegations against him before the representation is made – where the representation is made before the Judge is heard and a Tribunal appointed to investigate the Judge’s conduct – whether the making of the representation and the appointment of the Tribunal was unconstitutional - Constitution of Kenya, section 62.

Judicial Officer – judge - discipline and removal of judges – disciplinary procedure – where the suspension of a Judge ceased to have effect if the tribunal investigating the question of his removal recommended to the President that the Judge ought not to be removed from the officethe tribunal having recommended that the Petitioner be removed from the office - whether there was a constitutional provision empowering the Court to order the revocation or annulment or recall of the order for removal - Constitution of Kenya, section 62(6)

Held

1. There was a distinction between the case in question and the other two cases involving the suspended judges. While in the other two cases the Court had been moved by way of judicial review challenging on-going proceedings before the tribunal, the case in question was a constitutional petition, brought long after conclusion of proceedings before the tribunal. 2. The Court had not been constituted as an appellate court and could not therefore re-evaluate the evidence which had been tendered before the tribunal as that would be tantamount to exercising an appellate role over the tribunal.

3. Judicial officers enjoyed immunity from being sued for work done in the course of their duties under section 6 of the Judicature Act.

4. Although there was no express constitutional provision requiring the Chief Justice to notify the Petitioner of the allegations against him, it was only fair and reasonable that the Petitioner received notification of the allegations which formed the basis for the Chief Justice’s recommendation to the President.

5. It was not enough that the Petitioner be notified, but that the notification had to be made before the Chief Justice forwarded his recommendation to the President so that the Judge got the earliest opportunity to determine whether or not to defend himself in the event the recommendation was forwarded to the President or even whether to vacate office without unnecessary hassle.

6. The fact that the Counsel drew up allegations after the tribunal was set up could not in itself render the suspension of the Judge unconstitutional. As long as the Chief Justice had received complaints against the Petitioner to warrant the setting up of a tribunal, the establishment of the tribunal could not be termed as unconstitutional.

7. The Judge’s allegations challenging the alleged conduct by the tribunal would ideally have been brought before it through judicial review while proceedings were still ongoing before the tribunal.

8. It was public policy that there had to be an end to litigation, and a balance had to be struck between public policy and a person’s fundamental rights. Since no period had been prescribed within which a claim founded on an alleged violation of a fundamental constitutional right could be brought to court, there was no reason in shutting the door for the Petitioner.

9. Allowing the Petitioner’s claim for compensation would have been completely wrong as the Respondents who were members of the tribunal were also judges of the High Court and were performing a judicial function. If that was to be the case, such persons would lose the protection or immunity afforded to them by law which would in effect compromise the independence of the judicial officer(s) concerned.

10. The Petitioner had not made out a proper case for compensation as against the other respondents who were the Chief Justice and the Attorney General.

11. The Judge had been discriminated against in an unfair manner by the withdrawal of his salary and benefits unlike the other two judges and ought to have been paid any part of his salary that had been withdrawn.

12. The Court could not grant an order for the Judge to be reinstated as the Constitution did not empower it to interfere with the President’s prerogative to remove the Judge from office upon the recommendation of the tribunal. The Petitioner had sought to shut the stable door after the horse had bolted.

Petition allowed in part

Cases

East Africa

1. Msagha, Amraphael Mbogholi v Chief Justice of the Republic of Kenya & 7 others, Miscellaneous Application No 1062 of 2004- (Explained)

2. Waki ,Philip N Tribunal Matter No 1 of 2004 – (Followed)

3. In the Matter of Daniel SK Aganyanya Tribunal Matter No 3 of 2004 – (Followed)

4. Kinyanjui v Attorney General [2005] 2 KLR 454 – (Followed)

5. Rai & 3 others v Rai & 13 others [2002] 1 KLR 141– (Distinguished)

6. Mbugua ,Julius Kamau v Rep Criminal Appeal No 50 of 2008 – (Followed)

7. Keiwua ,Moijo Matavia Ole v Chief Justice of Kenya & 6 others Civil Application 202 of 2005– (Followed)

United Kingdom

1. Sirros v Moore [1974] 3 WLR 459;[1975] QB 118;[1974] 3 All ER 776 – (Distinguished)

Statutes

East Africa

1. Constitution of Kenya (Repealed) sections 14(2); 60(5)(a); 62(5)(6);70(a); 72(3); 74 (1);77(1); 77 (9); 77 (11);79 (1)(2b)(9)(10); 82(2); 84;104 –(Interpreted)

2. Constitutional Offices (Remuneration Act) (cap 423)- (General)

3. Judicature Act( cap 8) sections 6, 8 – (Interpreted)

4. Evidence Act (cap 80)section 126 – (Interpreted)

Advocates

1. Mr Mwenesi for the Petitioner

2. Mr Menge for the Attorney General

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