The Judicial Service Commission, Not The Chief Justice, Was The Body/Office Empowered to Make Any Decision as Regards the Pay of Judicial Officers On Suspension.

Brief facts

The respondent filed a petition in Nairobi ELRC Petition No. 100 of 2019 against the Chief Justice of the Republic of Kenya and the Judicial Service Commission (JSC), the 1^st and 2^nd appellants respectively. The respondent stated therein that he was employed by the JSC as a District Magistrate II (Prof.) on July 1, 2020, and after serving for 9 years, rose through the ranks to the position of Principal Magistrate. On May 23, 2019, the respondent experienced numbness and discomfort on his right leg, and sent a short message of his illness via text to his immediate supervisor, the Chief Magistrate at Kiambu Law Courts. Further, that in the course of the day, he felt better after physiotherapy and went to Court, and that in the midst of writing his judgment, he was informed of an urgent application in Kiambu Miscellaneous Criminal Application No. 222 of 2019 - Ferdinand Ndungu Waititu and Faith Njeri Harrison vs the EACC, DPP & 3 others ,which file was brought to him by the head of Criminal Registry as all the other Magistrates were engaged at the time. 

A few days later on May 30, 2019 after dispensing with the matter, the respondent received a letter from the Chief Justice, requesting him to explain why he handled only one matter when he was not the duty court, to which he replied in writing on June 6, 2019. Subsequently the Chief Justice exercised delegated power from the JSC, wrote to the respondent and in the letter, the Chief Justice suspended the respondent without pay for gross misconduct, in particular for entertaining a matter which the respondent had no jurisdiction to entertain. 

The respondent successfully obtained orders that the letter of the Chief Justice was illegal null and void for being in contravention of articles 41, 47(1) and 236 of the Constitution. The trial court further made a declaration that the appellants pay the respondent all salaries, allowances and other contractual and statutory benefits withheld throughout the suspension period, and directed the Appellants to reinstate the respondent to his employment and to continue in employment without loss of rank status and benefits. Aggrieved the appellants filed the instant appeal, challenging the decision of the High Court on grounds that the appellants acted within their constitutional and statutory powers to discipline the respondent.

Issues

1. Whether the Chief Justice had the power to suspend a judicial officer who was facing a disciplinary process.
2. Whether dismissal proceedings had to be undertaken before the Chief Justice could exercise the power of suspension of a judicial officer under paragraph 17(2) of the Third Schedule to the Judicial Service Act.
3. What were the stages required to be undertaken by the Chief Justice in dismissal proceedings against a judicial officer?
4. At what stage of the disciplinary proceedings was the Chief Justice deemed to be able to make an opinion that an officer ought to be dismissed?
5. Between the Judicial Service Commission and the Chief Justice, which body/office was empowered to make any decision as regards the pay of judicial officers on suspension?
6. Whether the action of the Chief Justice to suspend a judicial officer without pay and to require the judicial officer to show cause why the judicial officer should not be subject to disciplinary action before dismissal proceedings was undertaken was unfair and illegal.
7. What was the applicable test to determine whether a provision of the law created doubtful penalisation?
8. Whether the court would rely on the doctrine of exhaustion of remedies where there was clear abuse of discretion by the bodies who the court was to refer to.

Relevant provisions of the law

Judicial Service Act, Act No. 1 of 2011

Third Schedule paragraphs 17(1) and (2) 

17.     Suspension

(1)       Where an officer has been convicted of a serious criminal offence, other than such as are referred to in paragraph 28(2), the Chief Justice may suspend the officer from the exercise of the functions of their office pending consideration of their case under this Schedule.

(2)       The Chief Justice may suspend from the exercise of the functions of their officer against whom proceedings for dismissal have been taken if, as a result of those proceedings, he considers that the officer ought to be dismissed.

Held

1. Being a first appellate the court would consider the issues by re-evaluating the evidence adduced in the trial court and arriving at its own conclusions of fact and law. The court would only depart from the findings by the trial court if they were not based on the evidence on record, or where the trial court was shown to have acted on wrong principles of law.
2. There were two conditions that were provided for the exercise of the power to suspend an officer under paragraph 17 of the Third Schedule to the Judicial Service Commission Act. The first was stated in paragraph 17(1), which was when an officer had been convicted of a serious criminal offence, other than the minor offences referred to in paragraph 28(2). Where the condition precedent of conviction of a criminal offence in paragraph 17(1) obtained, the Chief Justice had power to peremptorily suspend a judicial officer from the exercise of the functions of that office, pending consideration of the case in the manner provided under the Third Schedule. That condition was not applicable in the circumstances of the respondents disciplinary process, as no evidence was availed by the appellants that the respondent was charged with, or convicted of any criminal offence.
3. The second condition was in paragraph 17 (1) of the Third Schedule to the Judicial Service Act, which provided that the Chief Justice may suspend an officer against whom proceedings for dismissal had been taken if, as a result of those proceedings, he considered that the officer ought to be dismissed. Therefore, there was a condition precedent that dismissal proceedings had to be undertaken before the power of suspension was exercised. 
4. The dismissal proceedings were set out in paragraph 25. A plain reading and interpretation of the provisions of paragraph 25 showed four stages required to be undertaken by the Chief Justice in the dismissal proceedings against a judicial officer. First, an inquiry; second, institution of the disciplinary proceedings by way of framing and forwarding of the charge or charges and any accompanying statements to the judicial officer, third, an invitation and opportunity to the officer concerned to state his or her case; and fourth, if the officer failed to exculpate himself or herself, laying of the charges and response if any before the JSC for a decision as to whether the disciplinary proceedings should continue or not. 
5. The Chief Justice undertook proceedings in the nature of a confidential preliminary inquiry, and that prior to the decision by the Judicial Service Commission (JSC) that disciplinary proceedings should continue against an officer, there would be no ground for the Chief Justice to suspend the officer as was provided for and envisaged in paragraph 25 (3) of the Third Schedule. We agree with the trial Judge for the following reasons. 
6. It was a condition precedent that before a suspension was effected under paragraph 17(2) of the Third Schedule to the Judicial Service Act, the applicable dismissal proceedings provided under paragraph 25 of the said Third Schedule had to be undertaken. The duty of procedural fairness imposed upon the Chief Justice by article 47 of the Constitution and the provisions of the Fair Administrative Action Act, would also require that the process under paragraph 25 be undertaken where a suspension was being effected pursuant to paragraph 17(2) of the Third Schedule. Under the provisions of paragraph 17(2) as read with paragraph 25 of the Judicial Service Act, the Chief Justice could only make an opinion as to whether a judicial officer should be dismissed after considering the said officers response or lack thereof to the charges made, and after approval of his recommendation to continue with the disciplinary process, including any suspension, by the Judicial Service Commission.
7. The Chief Justice suspended the respondent with nil pay, and at the same time specifically required the respondent to show cause why disciplinary action should not be taken against him within fourteen (14) days. In effect, the suspension of the respondent was therefore imposed before the dismissal proceedings provided by paragraph 25 were undertaken, including the approval by the Judicial Service Commission. To that extent, the Chief Justice exercised the power to suspend the respondent unfairly and illegally, as there was non-compliance with the applicable conditions under paragraph 17(2) and paragraph 25 of the Third Schedule to the Judicial Service Act. The trial Court did not err in its findings in that respect.
8. Paragraph 17(3) of the Third Schedule to the Judicial Service Act provided that while an officer was suspended from the exercise of the functions of their office they were to be granted an alimentary allowance in such amount and on such terms as the Commission would by regulations determine. An allowance was a share or portion of money that was assigned or granted. The Concise Oxford English Dictionary defined alimentary as relating to nourishment or sustenance.
9. The terms of a statute withholding pay to an employee were essentially of a penal nature, and like all penal provisions had to be construed restrictively, and a person should not be penalized except under clear law. The true test for the rule against doubtful penalisation was whether a particular construction inflicted a detriment, or greater detriment on persons affected. A law that inflicted hardship or deprivation of any kind on a person was in essence penal. There were degrees of penalisation but the concept of detriment inflicted through the states coercive power pervades them all. The substance, not the form of the penalty was what mattered. The law was concerned that a person should not be put in peril of any kind upon an ambiguity, hence the principle against doubtful penalisation.
10. There was no express, implied or other provision or suggestion in the Judicial Service Act and Employment Act of 2007 that the salary of a judicial officer or other staff on suspension would be withheld or not paid during the period of suspension. The respondent could not therefore be penalised in the absence of such a clear rule. In addition, his entitlement to alimentary allowance under paragraph 17(3) of the Third Schedule to the Judicial Service Act, had its basis on the Constitutional provisions on fair labour practices and the concept of reasonableness. It was notable that repository of the power to determine the pay a judicial officer on suspension in paragraph 17(3) of the Third Schedule was the Judicial Service Commission and not the Chief Justice, who was not therefore empowered to make any decision as regards the pay of judicial officers on suspension.
11. The respondents entitlement, was not diminished in any manner for want of provision and regulations by the JSC in that regard. That was one of the reasons why suspensions of judicial officers in the circumstances such as those of the instant appeal ought to be sanctioned by JSC, so that it could address its mind to the regulations needed by the Third Schedule to the Judicial Service Act with regard to payment of alimentary allowance and other conditions of suspension. The Registrar of the Court of Appeal was directed to send a copy of the judgment for the attention of the Attorney General, in light of the identified amendments and regulations required to be made to, and under the Third Schedule to the Judicial Service Act. For the purposes of the appeal, however, it sufficed that the suspension of the respondent with nil pay was illegal.
12. Exhaustion of alternative remedies was a constitutional and legal imperative under article 159(2)(c) of the Constitution and section 9(2) and (3) of the Fair Administrative Action Act. That position notwithstanding, courts still retained the residual jurisdiction to intervene in exceptional circumstances despite the existence of an alternative remedy. Whereas courts of law were enjoined to defer to specialised tribunals and other alternative dispute resolution statutory bodies created by Parliament to resolve certain specific disputes, the court could not, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who sought refuge under the Constitution and other legislations for protection. The court was perfectly in order to intervene where there was clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the rules of natural justice were manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.
13. The disciplinary process by the 1^st appellant against the respondent was marred from the start with illegality and procedural irregularity. It was evident that the Chief Justice had already made a finding in the letter dated June 13, 2019 that the respondents actions amounted to gross misconduct, and therefore, as regards the respondents culpability. The respondent was also subjected to extreme hardship having been illegally and indefinitely suspended with nil pay. Continuing with the disciplinary process in the circumstances would essentially have been an exercise in futility, and aid in the continued violation of the respondents rights,
14. The impugned disciplinary process, having been irregular and illegal ab initio, meant there were no valid proceedings that could be remitted back to the appellants for consideration. The trial court did not err in granting orders to restore the respondent to the status he was before the impugned disciplinary proceedings.