Please Wait. Searching ...
Shinyada v Judicial Service Commission (Petition E106 of 2020) [2021] KEELRC 5 (KLR) (26 November 2021) (Judgment)
Phylis Lusiah Shinyada v Judicial Service Commission [2021] eKLR
Neutral citation:
[2021] KEELRC 5 (KLR)
Republic of Kenya
Petition E106 of 2020
J Rika, J
November 26, 2021
IN THE MATTER OF: DENIAL OF RIGHTS, VIOLATIONS AND INFRINGEMENT OF ARTICLES
10, 22, 28, 41, 47, 48, 50 AND 258 OF THE CONSTITUTION OF KENYA.
AND
IN THE MATTER OF: SECTION 3,4, AND 12 OF THE FAIR ADMINISTRATIVE ACTION ACT NO 4
OF 2015.
AND
IN THE MATTER OF: JUDICIAL SERVICE ACT SECTION 32 AND THE RULES 25 [1-11] OF THE 3RD
SCHEDULE.
AND
IN THE MATTER OF: SECTION 12 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT
ACT
NO. 20 OF 2011 AND THE EMPLOYMENT AND LABOUR RELATIONS
COURT [PROCEDURE] RULES.
Between
Phylis Lusiah Shinyada
Petitioner
and
Judicial Service Commission
Respondent
Judgment
Petition
1.The petitioner filed her petition on December 22, 2020.
2.The petition is based on her affidavit sworn on November 18, 2020.
3.She explains that she joined the Magistracy under the Judiciary, in the year 2008, rising to the position of Senior Resident Magistrate, on account of her competence, professionalism and hard work.
4.She lists her career highlights to include appointment by the respondent, as Head of Kisii Children’s Court in 2011; pioneering and heading the 1st Municipal/ County Court in Kisii County; and being the first Deputy Registrar of the Employment and Labour Relations Court, Kisumu.
5.She states that, like other Judicial Officers who were appointed before the year 2010, she was subjected to vetting by the Judges and Magistrates Vetting Board [JMVB], which cleared her as suitable to continue in service.
6.5 charges at the JMVB were nonetheless referred to the Respondent, as the JMVB was found to have no jurisdiction by the Supreme Court, with regard to those charges.
7.The respondent took cognisance of the matter and charged the petitioner. There were 5 charges, as originated by the JMVB. The charges are contained in a letter from The Hon. The Chief Justice to the petitioner, dated June 23, 2017. The petitioner responded to all the charges, through her Advocates, Otieno Yogo Ojuro & Company, in a letter to the Chief Justice, dated August 1, 2018.
8.She was interdicted on August 21, 2017. She was heard by a Disciplinary Committee of the respondent, comprising Hon. Registrar Winfrida Mokaya [secretariat], Hon. Commissioners Mercy Deche [Chair & Representative at the respondent, of the Law Society of Kenya], Emily Ominde [Chief Magistrate, Representing the Magistracy] and Philomena Mwilu [Deputy Chief Justice, Representing the Supreme Court]. Hon Commisioner Aggrey Muchelule [Judge, representing the High Court], is recorded as having appeared mid-way, and did not participate in the matter [ page 33 of 65 of the disciplinary proceedings]. 4 of the charges were either withdrawn or dismissed, while 1, which was charge number 2 at the JMVB, and at the respondent, was upheld.
9.The charge was: -
10.On March 27, 2019, the respondent informed the petitioner that the respondent had met on March 12, 2019, and deliberated on her case. The respondent resolved to dismiss the petitioner from service, in exercise of its mandate under article 172 [1] [c] of the Constitution, and pursuant to regulation 25 [11], Part IV, 3rd Schedule, of the Judicial Service Act.
11.The letter, signed by respondent’s Secretary, Hon. Chief Registrar Judiciary, Anne A. Amadi, gives the reason for termination of the Petitioner’s service. The reasons are variously worded as follows: -
- In essence, you failed to perform your duties in an efficient and competent manner as required by the Judicial Service Code of Conduct and Ethics.
- That your conduct goes to the core of your duties as a Judicial Officer and amounts to dereliction of duty, lack of competence, diligence in discharge of your duties, and the same amounts to gross misconduct and incompetence.
12.This decision triggered filing of the Petition, through which the petitioner complains that her procedural and substantive, constitutional and statutory protections, were denied to her.
13.The petitioner explains her role, in Kisii C.M.C.C No. 88 of 2007. She states that she was administratively assigned the file, after all other Magistrates at the Station recused themselves. The file was placed before her at execution stage. The motor vehicle belonging to the defendant, complainant before the respondent, had been attached and sold to a 3rd Party through a public auction. She could not revert the motor vehicle to the Complainant through an application. The petitioner states that failure to grant orders reverting the motor vehicle to the Complainant, did not mean that justice was lost; the Complainant could appeal, seek review, or file a Claim for damages against the Auctioneers.
14.The petitioner states that in making her ruling in C.M.C.C No. 88 of 2007, dated November 30, 2011, she was guided by the pleadings, affidavits, submissions and the law. She considered and applied 2 decisions of the High Court, Jothan Muiruri Kibaru v Simon Towett Maritim [ Civil Case Number 253 of 1996] and Leonard NK Moss v Villa Care Limited & Another [2005] e-KLR. These decisions persuaded the Petitioner to release the motor vehicle to the new owner. It was her view that the High Court in the above decisions, determined that where a property is sold at a public auction, even if there were irregularities in the attachment and auction process, the sale to the purchaser at a public auction becomes irreversible. The Complainant had recourse, in damages against the Auctioneer.
15.The petitioner states that 3rd Parties had filed Petition No. 35 of 2010 before the High Court at Kisii. The High Court issued a ruling which the petitioner submits, did not restrain her judicial independence, in making her own ruling. No specific orders were served upon the Petitioner, restraining her judicial discretion.
16.At paragraph 17 of her founding affidavit, the petitioner states that she therefore formed the view, that the adverse decision taken by the respondent against her was meant to harass, intimidate, punish and oppress her. The respondent failed to uphold institutional independence, and protect the petitioner’s own independence, as constitutionally mandated.
17.The petitioner states that the allegations in the charge sheet, were not investigated and ascertained. Her ruling could be corrected by the High Court, through an Appeal. Further, escalation of the charges to the respondent by the J.M.V.B was done contrary to the Vetting of Judges and Magistrates [Amendment] Act, 2013.
18.The respondent is an Independent Commission, and ought to have investigated the matter, on receiving communication from the J.M.V.B. No investigation was carried out by the respondent. A preliminary investigation, before engaging in full investigation, was an administrative and constitutional imperative. Preliminary investigation ought to have been carried out by the Judiciary Ombudsman or any other person deputizing the Chief Justice.
19.Regulation 25 [3] of the 3rd Schedule, Judicial Service Act, was disregarded as there was no evidence, when the charges were placed before the respondent’s Committee, from the Chief Justice. The respondent ignored section 6 of the Fair Administrative Action Act, 2015, requiring that the petitioner is supplied such information as may be necessary, to facilitate an application for an appeal or review. Violation of any one of the Regulations in the 3rd Schedule, Judicial Service Act, invalidates subsequent proceedings.
20.The petitioner submits that the respondent is not the right forum for debating whether a Judicial Officer made an erroneous decision. The respondent’s role is not to interpret and assign meaning, to decisions made by Judges and Magistrates. She relies on a decision of the High Court in Apollo Mboya v. Judicial Service Commission & another; Justice Kalpana Rawal & 4 [Interested Parties] [2020] e-KLR, where it was held: -
21.The petitioner holds that she acted in accordance with the Magistrate’s Court Act and articles 159] [1] of the Constitution, and could not suffer personal liability for a judicial act.
22.Upon delivering her ruling subject matter of the disciplinary action, the Complainant through his Advocate, asked for stay of execution from the petitioner, a prayer she granted.
23.The petitioner underscores that she was guided by the rule of law in making the ruling. Ownership of the motor vehicle had changed hands, and it could not be reversed through an application. She reiterates that it was upon the Complainant to pursue general damages.
24.Judges and Magistrates are fallible, and make errors in the cause of administering justice. These errors are corrected through the appellate or review system, and the respondent is divested from interfering with the decision-making role of the judges and magistrates. The respondent attacked petitioner’s judicial discretion. She states that she acted in good faith at all times, and could not be punished for discharge of her duty, carried out in good faith. She relies on the decision of the Court of Appeal in Bellevue Development Company Limited v Francis Gikonyo & 7 others [2018] e-KLR.
25.The petitioner further states in her Supporting Affidavit that release of the attached motor vehicle, was an issue that had been escalated by the Parties to the High Court on appeal, and therefore to subject her to disciplinary proceedings on the same matter, was plainly wrong.
26.Discharge from service was premature and unreasonable. Judiciary has entrenched performance management. The petitioner had benefitted from training and mentorship from other judges and magistrates, and received positive appraisals on performance. She had authored hundreds of Judgments and Rulings in her career, which did not result in attacks on her competence. She had been assigned leadership roles within the Judiciary, based on merit.
27.There was inordinate delay in hearing and concluding her matter. Ruling before the J.M.V.B was in 2011. Reference to the respondent was made in June 2015. The matter was placed before the Chief Justice 2 years later in 2017, and determined by the respondent in 2019. It took 4 years for the respondent to hear and determine the matter. Between interdiction and dismissal, there was a period of 19 months, which was against respondent’s own Policy and the Judiciary Human Resource Manual, capping resolution of disciplinary cases against Officers at 6 months. In Civil Appeal No. 312 of 2019 before the Court of Appeal, Judicial Service Commission v. Daniel Mudanyi Ochenja, it was concluded that such delay offends article 47 of the Constitution, and the Fair Administrative Action Act.
28.Reasons wherefore, the petitioner prays for the following Orders: -a.A declaration that the action of the respondent to entertain complaints, to analyse the merits of the Ruling and Judgments the of petitioner [and Judicial Officers] to determine their competence, is unlawful, unfair and unjustified.b.A declaration that the action of the respondent against the petitioner contravened and was inconsistent with articles 2[4], 10[2] [a], 27 [1], 28, 41, 47, 73[2], 160 [1] & [5], 172[1] [c] 232[[e] [f], 236[a] and [b] 259[11], and 23[1] & 25[11] of the 3rd Schedule of the Judicial Service Act and section 3 [b] of the Fair Administrative Action Act and outside the Vetting of Judges and Magistrates [Amendment] Act 2013 [Act No. 43, 2013] Section 3.c.An order of Judicial Review under Article 23[3] [f] to bring into the Hon. Court to quash; set aside the charge, proceedings and determination founded on it.d.Compensation for the [violation] of petitioner’s rights and freedoms under Article 27 [1], 28, 41, 47 [1] and 236 [a] and [b].e.A declaration that the petitioner, as a Judicial Officer, under Article 159 [1], 160[1] and [5] of the Constitution and section 45 of the Judicial Service Act, enjoyed absolute immunity from any form of violation, for actions taken in good faith, in the performance of her judicial duties.f.A declaration that under article 2[4] and 236 [a] [b], the Petitioner is a lawful and legitimate holder of the rank of Senior Resident Magistrate, and a mandatory injunction do issue against the Respondent, to unconditionally reinstate and to deploy her with effect from the date of the Judgment, with all the back-pay and benefits.g.Costs and Interest.
Response
29.The Response is contained in a bulky 574-page replying affidavit, of the Hon. Chief Registrar of the Judiciary and Secretary to the respondent, Anne Amadi, sworn on 9th February 2021.
30.She states that it is the mandate of the respondent, under article 172 of the Constitution and the Judicial Service Act 2011, to receive complaints against Magistrates and to discipline Magistrates. In addition to the Act, the respondent is regulated by its Human Resource Policies and Procedures Manual. She gives an overview of the Regulations contained in the 3rd Schedule to the Judicial Service Act, on disciplining of Magistrates. These Regulations were strictly adhered to, in the process leading to the dismissal of Hon. Phylis Lusiah Shinyada, the petitioner herein.
31.She confirms that the petitioner was a Senior Resident Magistrate employed by the Judiciary, and worked at Kisii Law Courts at the material time. She was subjected to vetting by J.M.V.B as stated in her Petition.
32.In Supreme Court decision, Petition No. 29 of 2014, Judges and Magistrates Vetting Board v. Kenya Magistrates and Judges Association & Another, it was held that J.M.V.B could only vet Judges and Magistrates who were in office on the effective date [August 27, 2010, when the Constitution was promulgated], for alleged acts or omissions, arising before the effective date.
33.J.M.V.B therefore set aside its initial determination on unsuitability of 12 out of 26 Magistrates, on the basis that the alleged acts or omissions, over which they had been found unsuitable to continue serving, related to the period after the effective date. J.M.V.B did not therefore, have jurisdiction, and referred the complaints and supporting documents to the Respondent.
34.There were 5 complaints at J.M.V.B made against the Petitioner. In the first complaint, J.M.V.B made adverse findings against the petitioner; on the second, similar findings were made against the petitioner, who regretted giving orders contrary to what the High Court had given; on the third, the petitioner’s conduct was found to have injured the public image of the Judiciary and again the petitioner expressed remorse; on the fourth the Board found that the Petitioner compromised the right of the defendant to a fair trial, describing her conduct as despicable; and lastly, on the fifth complaint, J.M.V.B again concluded that the Petitioner had infringed an accused person’s constitutional rights.
35.It was not true that J.M.V.B, found the petitioner suitable to continue serving. It, to the contrary made adverse findings against the petitioner on all 5 charges, and declared she was unsuitable to continue serving. The Chief Registrar exhibits the Determination of the J.M.V.B in her Affidavit.
36.The petitioner, alongside other affected Magistrates, applied for review against the findings of unsuitability. On January 25, 2015, the Board reviewed and set aside its decision, based on the decision of the Supreme Court, depriving it temporal jurisdiction. It set aside the decision with a caveat that ‘’ …we wish to stress that had it not been for the finding of the Supreme Court that our mandate is limited to the conduct before the effective date, the applications for review may not have succeeded.’’
37.J.M.V.B forwarded the 5 complaints against the petitioner to the respondent, through letters dated June 29, 2016 and June 30, 2016.
38.The respondent resolved that the complaints are taken through the disciplinary process, prescribed under 3rd Schedule of the Judicial Service Act.
39.The Chief Justice framed charges, accompanied by statements of the allegations, through a letter to the petitioner dated June 23, 2017. She was invited to respond which she did, in a letter dated 11th July 2017. She was not condemned unheard. She was availed opportunity at all material times, to exculpate herself. The charges were detailed, and the Petitioner never at any one time, sought clarification from the Respondent.
40.In line with Regulation 16 of the 3rd Schedule, the Chief Justice interdicted the Petitioner. It was resolved that disciplinary proceedings should continue.
41.She was heard before Respondent’s Human Resource and Administration Committee. She was in the lead up to the hearing, availed witness statements by the Respondent. She appeared for the hearing, in the company of her Advocate Erick Ojuro, on July 26, 2018. She was informed at the hearing that charges 1 and 5 had been withdrawn.
42.Complainant in the 2nd charge, Hezron Nyambane presented his evidence.
43.Nyambane told the Committee that he was a defendant in Kisii C.M.C.C No. 88 of 2007. Julius Ndege was the Plaintiff. The plaintiff sought damages from the defendant, following a traffic accident occasioned by the plaintiff’s motor vehicle. Judgment was entered for the plaintiff for the sum of Kshs. 105,400. Warrants of attachment and sale issued on execution, against the Defendant’s motor vehicle KAA O41 R. The vehicle was sold, but sale did not satisfy the decretal sum. The plaintiff applied to attach and sell another motor vehicle belonging to the Defendant, a Mitsubishi lorry KAH 242 L.
44.Nyambane applied for stay of execution with regard to the second motor vehicle. Stay was allowed on the condition that he deposits the remainder of the decretal sum and the log book in Court. He did so, but the Auctioneer refused to release the lorry. The lorry was eventually sold by the Auctioneer to Evans Alunga. The Court had, pending litigation, ordered that the vehicle remains in the custody of the OCS Kisii. Evans Alunga filed a Petition at the High Court in Kisii, seeking to have the lorry released to him. The High Court [Musinga J, as he then was] declined the Petition, ruling that the Complainant’s right to the lorry, ought to have been safeguarded.
45.The Complainant told the Committee that, the petitioner released the motor vehicle, in disregard of the ruling of the High Court, and in disregard of the fact that he had met the conditions given by the Magistrate’s Court on stay of execution - depositing the balance of the decretal sum and the log book in Court.
46.The petitioner was granted an opportunity before the Committee to state her position. She stated that she did not ignore the ruling of the High Court. She observed that the Auctioneer was not a party to the High Court Petition. She acknowledged the ruling of the High Court in her own ruling. She told the Committee that the High Court had ruled that the Auctioneer did not pass a good title to the purchaser. She was not able to give an answer, when asked what the implication of this finding by the High Court was.
47.At the close of the hearing, the petitioner told the Committee, ‘’ I am ready to be cautioned and change. Maybe there are mistakes I could have made without knowing, and I am ready for change.’’
48.She did not at any time during the hearing, complain about the conduct of the proceedings. The Committee forwarded its Report to the respondent. The respondent deliberated and determined that the petitioner is dismissed from service. She was informed of the reasons for the decision. The respondent observed all the relevant laws in disciplining the petitioner, in particular articles 47 [1], 50 [1] and 236 [b] of the Constitution
49.There was no obligation on the part of the respondent, to generate a preliminary report through the Ombudsman or through any other person deputizing the Chief Justice. The Chief Justice acted in accordance with the Judicial Service Act.
50.On delay, the respondent advances the view that the Court should look at the circumstances which occasioned delay, holistically. The respondent is a part-time Commission, with majority of its Members in full-time gainful employment. The respondent was in the process of appointing a new Chief Justice, an exercise which concluded in November 2016. Immediately thereafter, the respondent commenced the process of hearing pending disciplinary matters. The Salaries and Remuneration Commission capped the sittings of the Respondent to 8 per month, which affected the efficiency of the respondent. Lastly the respondent states, delay can be attributed also, to delay in appointment and swearing of 4 Commissioners, and prolonged litigation attendant to those appointments. In the circumstances, delay was not unreasonable or inordinate.
51.The respondent did not attack petitioner’s exercise of judicial discretion. In the hearing, the Committee clarified it was not sitting on appeal against the petitioner’s ruling, but was only interested in her conduct and competence. She deliberately undermined the authority of the High Court, overturning its decision and occasioning injustice to the Complainant. Standards of judicial efficiency and competence have always been there from the year 2003, as laid down in the Judicial Service Code of Conduct and Ethics, 2003. It is ingenious of the petitioner to allege that Judiciary Performance Management System was not in place, at the time she was alleged to have displayed incompetence.
52.Article 160 [1] and [5] of the Constitution, only immunizes Judicial Officers for acts done in good faith and in the lawful performance of their functions. The article does not immunize Judicial Officers from disciplinary actions, when their conduct is in question. The conduct of the petitioner, in overturning the decision of the High Court, touched on the conduct and competence of the petitioner. She disregarded the hierarchy of courts, which demands that lower jurisdiction is bound by the higher jurisdiction.
53.There was no victimization or discrimination against the petitioner. The process did not breach petitioner’s right to fair labour practices. She was heard and admitted that she made a ruling contrary to the one made by the High Court. She tried to justify her departure from the findings and orders of the High Court. She was paid all her terminal dues. She was advised on her right of review. The respondent acted fairly, dismissing other charges against the petitioner.
54.The Chief Registrar Judiciary and Secretary to the Respondent, holds that the respondent discharged its role in accordance with the Constitution, and the Statutes governing its relationship with the petitioner. The petitioner is not entitled to reinstatement, compensation or any declaratory orders as prayed.
Closing Submissions
55.The Parties made lengthy Submissions, with overabundance of Judicial Authorities, which cannot all fit in this Judgment.
56.The petitioner submits, that judicial discretion is at the heart of judicial independence – SC Petition No. 22 of 2014, Basil Criticos v. Independent Electoral and Boundaries Commission. There was no evidence that the Petitioner was driven by bad faith in making her ruling. In SCoK decision, Bellevue Development Company Limited v. Francis Gikonyo & 7 Others [2020] e-KLR, immunity of Judges and Judicial Officers who discharge their functions in good faith, was upheld. If there are errors in a Judgment or Ruling, an Appeal or Review suffices- Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2007] e-KLR. When a Judge makes a wrong decision, it is described as a ‘mistake of the law’ and disciplinary proceedings should not be commenced against the Judge or Judicial Officer, simply because he or she had made a ‘mistake of the law’ – SC of India in Krishna Prasad Verma [D] Thr Los v The State of Bihar, 26th September 2019. In holding an Employee accountable for poor performance, the Employer has an obligation to have clear performance measurement tools in place- Jane Samba Mukala v Ol Tukai Lodge Limited, Industrial Court Cause Number 823 of 2010.
57.It is submitted further for the Petitioner, that the Chief Justice was under legal obligation to investigate the complaints against the Petitioner, before referring them to the respondent, and failure to investigate was a violation of article 47[1] of the Constitution – Timothy Nchoe Sironka v Judicial Service Commission [2020] e-KLR.
58.On remedies, the petitioner submits that she is entitled to the declaratory orders, as well as reinstatement and compensation. In Court of Appeal decision, Judicial Service Commission v. Daniel Mudanyi, Appeal No. 312 of 2019, the Court of Appeal was critical of the E&LRC for awarding an order of reinstatement, without compensation. Compensation alone is insufficient and Courts must not shy away from reinstating Public Service Employees, who have been subjected to unfair and unlawful termination, and who are ready to continue serving – Uganda SC, Omunyokol v Attorney-General, Civil Appeal No 06 of 2012, UGSC 4 [April 8, 2015 and Kenya Court of Appeal in Judicial Service Commission v Lucy Muthoni Njora [2021] e-KLR.
59.The petitioner lastly submits that, the respondent’s Committee which heard her, was not properly constituted, having had 3 female Commissioners in contravention of section 32[1] of the Judicial Service Act.
60.The respondent submits that the petitioner has failed to particularize the manner of constitutional infringement, under Anarita Karimi Njeru v The Republic [No 1] [1979] e-KLR. The jurisdiction of the Court is limited to interrogation of the process, not the substance of the disciplinary proceedings – Judicial Service Commission v Gladys Boss Shollei & Another [2014] e-KLR and Suchan Investments Limited v The Ministry of National Heritage & Culture, & 3 others [2016] e-KLR. In the former decision, it was the holding of the Court that an Employer must of necessity have control over its Officers, and the operations of its establishment. Courts only interfere with decisions of Administrators, if those decisions are outside the band of reasonableness – Republic v Public Procurement Administrative Review Board & 3 others [2017[ e-KLR.
61.The respondent agrees that Judges and Judicial Officers have judicial discretion in decision-making, citing Mbogo v Shah [1968] EA. The respondent did not purport to exercise supervisory role over the petitioner and did not interfere with her discretion. The issue of judicial competence goes to the root of disciplinary mandate of the respondent, bearing in mind the sensitive dockets held by Judges and Judicial Officers. The petitioner was accorded fair hearing, as defined in Republic v Commission of Administrative Justice ex parte Stephen Githaiga Mwangi [ 2017] e-KLR: Petitioner was notified of the charges against her; she had particulars of the charges; and was aware of the nature of the case against her. On delay, the Respondent reiterates that what is expeditious and efficient, is a matter to be determined by reasonably balancing all the surrounding circumstances- Judicial Service Commission v. Davis Gitonga Karani [ 2020] e-KLR. In the Court of Appeal and Supreme Court of Kenya decisions involving Judges Francis Gikonyo and Charles Kariuki [citation above], judicial immunity was affirmed, but only in cases where judicial function has been carried out in good faith and lawfully. Good faith, was defined to include honesty in belief or purpose; faithfulness to one’s duty or obligation; observance of reasonable commercial standards of fair dealing in a given trade or business; or absence of intent to defraud, or to seek unconscionable advantage. The petitioner demonstrated incompetence in disregarding the ruling of the High Court. The respondent submits that the Petition is a thinly veiled attempt, to find solace in constitutional edicts. Independence on the part of the Judge is not absolute. He /She can be brought to account for impropriety, misconduct, breach of ethics, arbitrariness, corruption, malice or acting without reasonable and probable cause- Dennis Mogambi Mong’are v. The Attorney- General & 3 Others [2014] e-KLR.
62.On the remedy of reinstatement, the respondent relies on Kenya Airways Limited v Aviation & Allied Workers Union [K] [2014] e-KLR, proposing that reinstatement should only be granted sparingly. The Petition is unmerited and should be dismissed with costs to the respondent.
63.Hearing of the Petition was through written submissions, which the Parties confirmed to have filed and exchanged, on June 10, 2021, and October 1, 2021 when the matter lastly came before the Court for mention. Judgment was reserved for December 16, 2021, but is ready for delivery on the date indicated at the end of the Judgment.
Issues
64.The issues as crafted by the Parties and understood by the Court, may be summarized as: -
The Court Finds: -- Whether the procedure in discharging the petitioner from judicial service was procedurally lawful and fair.
- Whether the respondent established valid reason or reasons, to warrant discharge of the Petitioner from judicial service.
- Whether the petitioner merits the remedies contained in her Petition.
65.The terms ‘Judge’ and ‘Judicial Officer’ have been used together in this Judgment. Most of the principles under discussion, involve Judges and Magistrates. Confusion of terms ‘Judge’ and ‘Judicial Officer’ is occasioned by Article 260, defining ‘Judicial Officer’ to mean Registrar, Deputy Registrar, Magistrate, Kadhi or a Presiding Officer of a Court established under article 169 [1]. It excludes Judges. A more sensible definition, is in the Judicial Service Code of Conduct and Ethics, Legal Notice Number 50 of 2003, which states, ‘’Judicial Officer, shall mean and include any Judge, Magistrate, Registrar or Kadhi of all grades, employed in the Judicial Service of Kenya. ‘’ Courts, including the Supreme Court of Kenya in Bellevue Development Company Ltd. v. Francis Gikonyo & 3 Others [2020] e-KLR, have been compelled to explain in matters involving Judicial Officers that ‘’ we shall in this Judgment use the terms ‘Judges’ and ‘Judicial Officers’ interchangeably. ‘’
Procedure.
66.The complaints against the Hon. Shinyada, the petitioner herein, originated from the Judges and Magistrates Vetting Board. She holds that the Board cleared her, finding she was suitable to continue serving. She complains that, the Board acted outside its mandate in referring the same complaints to the respondent.
67.The respondent explains that the Board found the petitioner culpable on the 5 complaints before it, and declared her unsuitable to serve. The jurisdiction of the Board was challenged at the High Court, Court of Appeal and eventually at the Supreme Court of Kenya, in Petition No 29 of 2014, Judges and Magistrates Vetting Board v. Kenya Magistrates and Judges Association & Another. The Supreme Court endorsed the decisions of both Courts below it, which was that the Board could only deal with Judges and Magistrates, who were in office at the time the Constitution was promulgated, August 27, 2010, for acts or omissions arising before the effective date, not after this date.
68.The complaints against the petitioner and some other magistrates arose after the effective date, and the Board did not have temporal jurisdiction over the complaints. But the Board had already made its determination, declaring the Petitioner unsuitable. She and her colleagues sought review from the Board, after the Supreme Court rendered its decision. The Board had no option but to review its determination on unsuitability, and ultimately refer the complaints to the respondent.
69.In the view of the Court, it is purposeless for the Petitioner and the Respondent to spend considerable time, arguing on findings of suitability or unsuitability, made by the Board. The process and the outcome before the Board was a nullity and void ab initio for want of jurisdiction. Proceedings before the Board can only add a historical value to the dispute.
70.In Joseph Oginga Onyoni & 2 others v The Attorney-General & 2 others [2016] e-KLR, the Court restated the principle that decisions made by adjudicatory bodies, without the requisite mandate, or in excess of mandate, are null and void ab initio.
71.The determination of the Board was void, and in law a nullity. In Macfoy v United African Co Ltd [1961] 3 All ER, 1169, Lord Denning held that ‘’ if an act is void, it is a nullity in law. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void, without much ado, though it is sometimes convenient to have the court declare it to be so. ‘’
72.The determination of the Board, for or against the Petitioner is therefore unhelpful, in determination of this Petition. It was a nullity. It was pointless for the Board to give a caveat on review, about the chances of success of the application, had the Supreme Court not found it did not have jurisdiction. Its decision was null and void ab initio, and was only reviewed and declared null and void, as a matter of convenience.
73.Was the Respondent wrong therefore, in founding the charges against the Petitioner, from the communication made by the Board?
74.The court does not think so. The process before the Board was different from the process overseen by the respondent, under the Judicial Service Act. The fact that the Board was found to have no jurisdiction, did not bar the Board from communicating the complaints against the petitioner to the Respondent. It was not exercising its jurisdiction in communicating with the Respondent. Once the respondent received the complaints, it was at liberty to ignore or act on them.
75.Article 172 [1] [c] of the Constitution mandates the respondent, among other things, to receive complaints against, investigate and remove from office or otherwise discipline magistrates and other Judicial Officers and Staff. The source of the complaints is unrestricted. Complaints can be originated by whistle-blowers, individuals or institutions. This mandate is legislated under section 32 of the Judicial Service Act and the 3rd Schedule.
76.The record from the Board was communicated to the Chief Justice. Upon receipt, the Chief Justice was required to make such enquiry as he deemed fit, under regulation 25 of the 3rd Schedule. If the Chief Justice is satisfied that the complaint would, if proved result in dismissal, he is required to frame charges against the Officer, and shall forward a statement of the allegations to the Officer, inviting the Officer to give an exculpation.
77.This procedure was met, as evinced in the letter of the Chief Justice David K. Maraga to the petitioner, dated June 23, 2017.
78.5 charges were communicated by the Chief Justice to the petitioner. They were, as had been drawn and presented to the petitioner, at the J.M.V.B. The petitioner was well-acquainted with the details of the charges, right from the doomed proceedings, before this Board.
79.In fact, at paragraph 37 of her supporting affidavit, she states, she was the one who compiled the proceedings and ruling in the case at Kisii over which she was being disciplined. The issues she faced, were about those proceedings and ruling. The Court would agree that the Chief Justice, like any other Administrator, is required under the Judicial Service Act and the Fair Administrative Action Act, to investigate complaints before interdicting an Officer. Regulation 25 [1] of the 3rd Schedule refers to an inquiry by the Chief Justice. That inquiry or investigation, ought to be available to an accused Officer in form of a written report, particularly if the Officer has asked for it, before attending the disciplinary forum.
80.The petitioner has not however, demonstrated that in light of the records from the J.M.V.B and the nature of the charges relating to the proceedings and ruling she was involved in at Kisii, which she herself compiled to the benefit of the Respondent, that the absence of an investigation report by the Chief Justice, before interdiction, was prejudicial to her. What was to be investigated? The facts were quite narrow, based on proceedings and rulings of the Petitioner and the High Court, at Kisii. There was no dispute about delivery of the rulings or their contents. The Court does not therefore think that the Claimant was denied procedural justice, by the Chief Justice not conducting any recorded inquiry, before interdiction.
81.The petitioner responded to each of the 5 charges, in her letter to the Chief Justice, dated July 11, 2017. There was no disputation of the facts in her response. The dispute was about her understanding of the law, and application of the law to the uncontested facts. There is no purpose served in fact-finding, where the facts are not disputed.
82.The Chief Justice interdicted the petitioner in his letter dated August 21, 2017, citing regulation 16 of the 3rd Schedule.
83.It was considered that the petitioner did not exculpate herself, and the respondent was tasked to commence disciplinary proceedings against the petitioner.
84.The petitioner subsequently appeared before the Disciplinary Committee on July 26, 2018. She was represented by an Advocate, Mr. Ojuro. Witness statements had been availed to the Petitioner before the hearing.
85.The 5 charges were read to her. She denied all of them. She was informed by the Chair, Mercy Deche, that the 1st charge had been withdrawn. The 5th charge, presented by an Advocate of the High Court of Kenya, was similarly withdrawn. She was to defend 2nd, 3rd and 4th charges. Witnesses presented their evidence and the opportunity to cross-examine was availed. The petitioner gave her own evidence. She was advised on her right to call witnesses. Her Advocate was by her side throughout. 3rd and 4th charges were dismissed by the Committee, while the 2nd was upheld, leading to the dismissal letter of March 27, 2019.
86.The petitioner challenges the constitution of the Disciplinary Committee, submitting that the panellists were from the same gender, contrary to the Judicial Service Act. This submission was made belatedly, and does not seem to have given the respondent an opportunity to respond on the particular subject. It is irregular to raise fresh issues, in final submissions.
87.Section 32 of the Judicial Service Act, states that for purposes of appointment, discipline and removal of Judicial Officers and Staff, the respondent shall constitute a Committee or Panel which shall be gender-representative. The Petitioner complains that she was heard by 3 Ladies- Hon. DCJ Philomena Mwilu, Hon. Emily Ominde and Hon. Chair, Mercy Deche.
88.The record indicates that Hon. Judge Muchelule joined the proceedings midway. It was made clear by the Chair, that he would not participate. In the view of the Court, he was not therefore part of the Committee that heard the petitioner. It is not clear why, the Hon. Commissioner attended proceedings he did not have an active role in.
89.Hearing of disciplinary proceedings is governed by regulation 25 of the 3rd Schedule. Section 32, Judicial Service Act, is on appointment of the Committee, which in the understanding of the Court, is the Human Resource and Administration Committee of the respondent. This is a Standing Committee, appointed to among other human resource functions, administer discipline. It is this Committee, under section 32 of the Judicial Service Act, which is required to reflect gender balance.
90.Regulation 25 [3] requires that the respondent appoints at least 3 persons, presumably from the Committee appointed under section 32, for purposes of the actual disciplinary hearing. The Regulation does not require gender balance in the 3-person Committee. The Chief Justice shall not be a member of this Committee. Judges who are members of the respondent under the Constitution, are allowed to sit in the Committee.
91.The Committee which heard the petitioner was properly constituted. There were 3 persons. There was no gender ratio required in the composition of the Disciplinary Committee. They were only required to be 3 persons. It did not matter if they were all female, male or transgender. The Petitioner’s challenge on composition of the Disciplinary Committee has no merit and is declined.
92.There admittedly, was delay in hearing the petitioner. The actual hearing took 19 months, against the fair standard of 6 months, adopted by the respondent in its own human resource policy. The respondent submits that, there were internal and external challenges, affecting its ability to conclude disciplinary proceedings within the desired 6 months. It was involved in appointment of a new Chief Justice; appointment and swearing in of new Commissioners was under legal challenge; the Commissioners are part-timers at the respondent, while fully employed elsewhere; and sittings of the respondent had been reduced to a maximum of 8, in a month, by the Salaries and Remuneration Commission.
93.The Court is persuaded that delay was in the circumstances, not unreasonable. The respondent demonstrated there were external and internal factors, beyond its control, militating against a timeous disposal of the complaints against the petitioner. The record indicates, she was granted a hearing as soon as these impediments receded. Delay on its own, cannot in the view of the Court, be interpreted as an abridgment of the petitioner’s article 47 rights. It would serve the Respondent well however, to relook at its policy on the reasonable period it is likely to take, in hearing and expeditiously disposing of disciplinary cases. There are many cases against the respondent, brought by Judicial Servants, coming before this Court, where delay is always shown to be present.
94.There was no significant breach of fair procedure, under the Judicial Service Act, the Fair Administrative Action Act and the Employment Act.
Valid Reason or Reasons.
95.The respondent submits that courts are limited to review of administrative processes, and not the substantive reasons given by Administrators, in making their decisions. The respondent anchors this argument on Sucham Investments Ltd. v. Ministry of National Heritage & Culture & 3 Others [2016] e-KLR.
96.The Employment Act requires that Employers meet procedural, as well as substantive standards of fairness, in termination of Employees’ contracts, under sections 41, 43, 45 and 47[5]. The Court, in looking into fairness of Employers’ decisions, is mandated to look at the procedure, as well as the reason or reasons, given by the Employer, in justifying termination.
97.Section 4[2] of the Fair Administrative Action Act, imposes an obligation on Administrators to give written reasons for their decisions. Section 6[2] of the Act, allows every person, affected materially or adversely by any administrative action, to be supplied with written reasons for the administrative action. The preceding section 5 [2] [b] and [c], allows affected person to apply for review of an administrative action or decision, by a Court of competent jurisdiction in exercise of his or her right, under the Constitution or any written law, and to pursue such remedies as may be available under the law. Failure by an Administrator to supply reasons for the decision, in the absence of proof to the contrary, leads to a presumption that the decision was made without good reason.
98.Regulation 24 of the 3rd Schedule to the Judicial Service Act, requires the respondent to supply the affected Officer with findings on every charge. Reasons must be given.
99.Decisions of Administrators are therefore challengeable in Court on procedural and substantive grounds. It would be absurd for the Court to be limited to review of the procedure alone. The reasons justifying the decision, are oftentimes, the centrepiece of judicial intervention in administrative actions, and in particular actions terminating an Employee’s contract of service. Administrators are required to give reasons for their decisions, so that the persons dissatisfied with those reasons, are able to challenge those reasons in Court, on review or appeal. When Courts review decisions of Administrators substantively, they are simply enforcing the mandate of the Administrators, established by legislation. There is no reason to hold that the role of the Court is limited to interrogation of the process leading to termination, as urged by the respondent. The authority of the Administrator is not absolute, and rule of law and good administration concerns, ensure that the reasonableness of administrative decision is policed by the Courts.
100.Substantive review by Courts, based on rule of law concerns, and the principle of fairness inherent in our constitutional order, has been upheld by Courts in English decisions, A v Criminal Injuries Compensation Board [1999] 2 AC 330 and E v Secretary of State for the Home Department 2 AC 330.
101.The charge over which the petitioner was dismissed, was charge number 2, which is worth repeating here. It reads:
102.The petitioner was therefore charged with lack of competence in discharge of her role as a Senior Resident Magistrate, Kisii Law Courts.
103.In examining whether the petitioner was incompetent, the Court must carefully look into the proceedings before the petitioner, her ruling which led to dismissal from judicial service, and the ruling of the High Court which she was said in the charge sheet above, to have defied and released the motor vehicle to the plaintiff. Focus must throughout, be placed on the concept of judicial incompetence. It was the sole judicial offence, over which the petitioner was charged, heard and dismissed from service.
104.In summary, the Complainant Hezron Otochi Nyambane, was sued by Julius Momanyi Ndege in C.M.C.C No. 88 of 2007. The Complainant’s motor vehicle KAA 041 R was involved in an accident with the plaintiff’s motor vehicle. Judgment was entered in favour of the plaintiff for the sum of Kshs. 105,640.
105.The Complainant failed to satisfy decree and his motor vehicle KAA 041 R was attached and sold in execution. The decretal sum was not satisfied and the plaintiff applied for attachment and sale of a second motor vehicle belonging to the Complainant, a lorry KAH 242 L.
106.The Complainant applied and obtained orders ex parte on June 2, 2009 for release of the attached lorry. The plaintiff immediately applied for ex parte orders releasing the lorry, to be stayed. The orders for release were stayed, on June 3, 2009, a day after release orders issued.
107.The proceedings up to this stage, were before other Magistrates, not the petitioner.
108.On June 17, 2009, the Complainant applied to have the lorry released, and was granted the orders, on the condition that he deposited the logbook and the balance of the decretal sum in Court. Between June 3, 2009 and June 17, 2009, there were no orders in force, against attachment and sale of the lorry, which was in the custody of the Auctioneer. The Complainant complied with the orders of the Court of June 17, 2009, by making the deposit on June 23, 2009.
109.While this was going on, the Auctioneer had already sold the lorry through a public auction, on June 5, 2009, to Patrice Mulei Alunga at Kshs. 480,000.
110.The record shows sale took place before the Complainant obtained orders to deposit the logbook and the balance of the decretal sum in Court. It took place on June 5, 2009, while there were no orders of stay of execution of any nature, in force. The petitioner, was not the Magistrate involved with the execution dispute, up to this point.
111.On June 25, 2009, the Purchaser Patrice Mulei Alunga filed an ex parte Miscellaneous Application No. 67 of 2009, where he obtained orders vesting the lorry in his name. He proceeded to have the lorry transferred and registered in his name.
112.Although Miscellaneous Application No. 67 of 2009, is mentioned in the charge sheet drawn by the Chief Justice above, the Miscellaneous Application was not before the petitioner, and it was not the petitioner who issued the vesting order. It is not clear from the record, in what way Miscellaneous Application No. 67 of 2009 implicated the petitioner of the charge of incompetence.
113.To complicate matters, the lorry was further sold by Patrice Mulei Alunga to Evans Angoke Alunga.
114.Evans Angoke Alunga proceeded to the High Court at Kisii in Petition No. 35 of 2010, while the execution dispute was raging before the Magistrate’s Court. The lorry had been seized by Police at Migori, acting on an order of another Magistrate, ostensibly on the ground that ownership of the lorry was still under litigation. Evans Angoke Alunga, therefore sought protection from the High Court, asking the Court to declare that seizure of his lorry contravened his property rights under the Constitution, and an order for release of the lorry to him.
115.At this point, the petitioner had not yet been drawn into the muddle of these proceedings.
116.On July 7, 2009, the complainant had filed another Application before the Magistrate’s Court, seeking orders that: Miscellaneous Application No. 67 of 2009 is consolidated with C.M.C.C No. 88 of 2007; purported sale of the lorry by the Auctioneer is declared null and void; the vesting order is reviewed; and the lorry released to the complainant forthwith.
117.This application was pending hearing, at the time the High Court heard Petition No. 35 of 2010. It is mentioned in the ruling of the High Court. The ruling was made by Hon. Resident Magistrate Njeri Thuku, on October 1, 2010. She struck out the application, on the ground that it was not properly before her. The complainant was placed at liberty by the Court, to file his application afresh.
118.Hon. Justice Musinga had delivered his ruling on July 2, 2010. The Judge stated that, he was unable to grant prayers [a] [b] and [c] of the Petition, which were: declaration that seizure of the lorry contravened the petitioner’s property rights; that the lorry is released to the petitioner; and that the Petitioner was entitled to damages for violation of his constitutional right. There was no order adjudicating the ownership of the lorry, simply because the execution dispute was not yet before the Hon. Judge. There was no order directed at the Magistrate’s Court not to deal with the execution dispute, or refer the same to the High Court. The High Court ruling dismissed the Petition by Evans Angoke Alunga, and no more.
119.The High Court did however, express its opinion on the ownership, remarks which were interpreted by the Respondent as comprising a conclusive decision on possession and ownership of the lorry. The High Court stated that the Auctioneer did not pass a good title to Patrice Mulei Alunga, because sale had been stayed by an order of the Court. The High Court stated that at the time the Plaintiff obtained the orders reversing the orders made in favour of the Complainant for release of the lorry, release orders to the Complainant had not been vacated, but merely stayed. Does not stay of execution of orders, mean they are not in force? Was the Plaintiff to assume the orders were still in force, and halt further execution of his Judgment?
120.The ruling by Hon. Justice Musinga was the subject of a Review Application made by Evans Angoke Alunga. There was a ruling on Review, which has not been highlighted by either of the Parties in this Petition. The ruling by Hon. Justice Makhandia, according to the statement of witness filed by the Complainant dated 24th March 2018, emphasized the need for the execution suit to be heard and determined by the Magistrate’s Court which had issued the decree.
121.What was the petitioner’s role in all this?
122.The petitioner appears to have become seized of the matter from August 29, 2011.
123.The complainant renewed his Application which had been struck out on October 1, 2010 by Hon. Njeri Thuku. The renewed application is dated 4th October 2010. It was argued before the petitioner.
124.It is important to look at the steps taken by the petitioner in dealing with the Application, in relation to the charge of incompetence.
125.She gave directions that the Application, is treated as a suit under section 34 [2] of the Civil Procedure Act}. All interested Parties were involved. The Auctioneer who was not at the High Court, and who was central to the entire attachment and sale transaction, was now involved in this suit before the Petitioner.
126.Section 34 [2] of the Civil Procedure Act, states that ‘’all questions arising between the Parties to the suit in which decree was passed, or their representatives, and relating to execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.’’
127.It must be underscored that disputes on execution under the above law, must be heard by the Court executing decree, and not by any other Court. In South Nyanza v. Alfred Sagwa Mdeizi t/a Pave Auctioneers [who was also the Auctioneer in the Application before the Petitioner], [2010] e-KLR, the High Court held that Section 34 of the Civil Procedure Act, strictly bars filing of separate proceedings, to determine issues that emanate or arise from execution of decrees in a suit. This was the holding also in Supreme Court of Uganda in Simba [K] Ltd. & Others v. UBC [SCCA No. 03 of 2014], with respect to the Ugandan Civil Procedure Act, Section 34, which is similar to the Kenyan law. It was therefore for the Petitioner, to determine who were the rightful Parties before her, and demarcate their respective rights and liabilities under the execution suit.
128.She proceeded to hear all the Parties, including the Auctioneer who was not at the High Court. There was information supplied by the Auctioneer in particular, which does not seem to have been available at the High Court.
129.The Petitioner, upon hearing and evaluating the arguments made by all the Parties, exercising her undoubted, exclusive jurisdiction, under Section 34[2] of the Civil Procedure Act, wrote her reasoned ruling, dismissing the Complainant’s Application and releasing the lorry to Evans Angoke Alunga. The lorry was not released to the Plaintiff as stated in the charge sheet drawn by the Chief Justice. It was released to the 2nd purchaser, Evans Angoke Alunga.
130.The petitioner considered the decision of the Kisii High Court in Petition No. 35 of 2010, and also considered two other decisions of the High Court, which were at odds with the opinion of the High Court in Petition 35 of 2010. She was cautious, to respectfully observe, that she did not wish to appear to be faulting the finding of the Judge in the Petition. In Nairobi High Court Miscellaneous Civil Application, No. 172 of 2004 at Nakuru, Simon Towett Maritim v. Jotham Muiruri Kibaru and Nairobi H.C.C.C No. 369 of 2005, Leonard K. Moss v. Villa Care Limited & Another, the High Court stated that even if there were infirmities in the attachment and sale process, the property, having been sold at a public auction could not be reversed, and the Applicant could only pursue damages under section 26 of the Auctioneers Act. She dismissed the Complainant’s Application and directed that the vehicle is released to the 4th Interested Party, Evans Angoke Alunga. It is the finding of the Court that the Petitioner exercised her discretion judiciously; she was mandated to evaluate evidence and make an independent determination under section 34 [2] of the Civil Procedure Act; the ruling of the High Court in Petition No. 35 of 2010 did not bar the petitioner, from free exercise of civil mandate; the High Court was not seized of the execution suit under section 34 [2] of the Civil Procedure Act; the decree was not a decree issued by the High Court; the High Court had in the Petition emphasized the importance to have the execution suit disposed of in the Court which issued decree; and the petitioner’s ruling disclosed no grounds to conclude that she did not demonstrate judicial competence.
131.The last proceedings the petitioner conducted after her ruling are critical in examining her competence. On December 12, 2011, the Complainant’s Advocate appeared before her, with an Application for leave to appeal the ruling. She certified the Complainant’s Application urgent, and granted the Application as prayed. She also ordered that the proceedings be typed, and supplied to the Complainant.
132.The complainant appealed the ruling, in Kisii High Court Civil Appeal No. 258 of 2011. The record indicates other Appeals by rival Parties, on rulings made by various magistrates in the matter, were to be filed at the High Court. How was the appellate jurisdiction going to deal with these Appeals, if the ruling of the High Court in the Petition, was conclusive?
133.Was there judicial incompetence on the part of the petitioner? It is difficult to see what aspect of the proceedings before the Petitioner, was handled without deference to legal professionalism, knowledge, diligence and judicial competence.
134.The High Court in Petition 35 of 2010, did not bind the petitioner to rule in favour of the Complainant. The High Court stated that the Complainant’s interest should have been safeguarded, as his right to the lorry was still subject of court proceedings. The High Court on review by the petitioner [Evans], ruled that it was essential to have the execution suit heard before the Magistrate’s Court. At no time did any Judge of the High Court, hear and determine the execution suit. The execution suit was heard eventually, and culminated in the ruling by the Petitioner. Proceedings that were pending before the Magistrate’s Court, ended in the suit that was heard by the Petitioner, under section 34[2] of the Civil Procedure Act. The High Court gave an opinion while dismissing the Petition, that the right of the Complainant ought to have been protected, pending determination of proceedings. The lorry was preserved at the Police Station, pending determination of the competing claims, to its ownership and possession. The petitioner resolved these rival claims in accordance with the law, and her understanding of the law. There was no declaration by the High Court, that the Complainant should eventually be found to be the rightful owner of the lorry, or that the lorry should eventually be released to him. He was a Judgment-Debtor who had failed to meet a Judgment issued regularly by the Court, and who deposited security in Court at the 13th hour, when his property had already been sold.
135.It was completely contrary to the law, to conclude as did the respondent, that the petitioner overturned the decision of the High Court. There was no decision determining ownership in favour of the Complainant, or directing that the lorry held at the Police Station, should eventually be released to him.
136.The petitioner’s competence was also attacked on the ground that she ordered release of the lorry while there was an order of stay of execution in place.
137.But the record shows the lorry had already been sold, vesting order issued, and logbook transferred, at the time the petitioner became seized of the matter. Deposit of the logbook and balance of the decretal sum, was made after sale had taken place.
138.The proceedings before the petitioner do not reveal that she was incompetent.
139.What is judicial incompetence, and how have Courts applied the concept, in removal of Judicial Officers?
140.The court has not come across decisions of Superior Courts in Kenya, dealing with removal of Judicial Officers, solely on the basis of incompetence.
141.The Supreme Court of Missouri, In re Baber 847 S.W. 2d 800 [Mo. 1993] decided on March 23, 1993, dealt with the removal from office, of a veteran Associate Circuit Judge of 21 years, Floyd R. Baber.
142.It was observed In re Baber, that there were no prior decisions from the Courts, contemplating imposition of judicial discipline, solely on the basis of incompetence. This observation is not dissimilar to the present position in Kenya. The Missouri Court held that ‘’ intelligence, ability and diligence are minimum qualifications, expected of every Judge.’’ Lack of these qualities constitutes incompetence. The Constitution of Kenya recognizes these qualities right from appointment of Judges, under Article 166 of the Constitution [prerequisites], to their removal under Article 168 [grounds for removal]. Incompetence is one of the grounds warranting removal of a Judge from office. This ground is separate from gross misconduct or misbehaviour. The principles on judicial competence and conduct, applicable to Judges, extend to Magistrates. Regulation 12 [3] [d] of the Judicial Code of Conduct and Ethics, stipulates that Judicial Officers, shall perform their duties in an efficient and competent manner. Competence is an indispensable quality, required in discharge of judicial service.
143.The Court In re Baber, adopted definition of incompetence from other decisions such as State ex rel. Hardie v. Coleman, 155 So, 129, 133 [Fla. 1934] [Supreme Court Florida], which held incompetence to include ‘’ any physical, moral or intellectual quality, the lack of which incapacitates one to perform the duties of his office.’’ The Supreme Court of Alabama found it, in State ex rel. Brickell v. Martin, 180 Ala. 458, 61 So. 491, 494 [1913], to comprise ‘’ mere incapacity for the performance of official duties.’’ In Oregon, the Supreme Court, in the Matter of Field, 281 Or.623, 576 P. 2d. 348, 354 [banc. 1978], held incompetence means ‘’general incompetent performance of judicial duties, evidenced by lack of the knowledge and judgment necessary, for the proper administration of justice in our Courts.’’ Lastly, In re Barber, consideration was given to the dictionary meaning of incompetence, which is, ‘’ lack of ability, knowledge, legal qualification, or fitness to discharge the required duty or professional obligation,’’ Black’s Law Dictionary 765 [6th ed. 1990].
144.From the conduct of proceedings by the petitioner in Kisii C.M.C.C No. 88 of 2007, the Court does not see which quality required of a Judicial Officer in the definitions above, could have been lacking in the petitioner, to lead to a conclusion that she was incompetent.
145.In re Baber, it was held further, that when incompetence is alleged against a Judicial Officer, it is the role of the Court [or the Administrative Body] seized of the disciplinary hearing, ‘’ to determine whether the conduct at issue, established that the Respondent lacks the requisite ability, knowledge, judgment or diligence, to consistently and capably discharge the duties of the office he or she holds.’’
146.Incompetence, even assuming the petitioner conducted proceedings in Kisii C.M.C.C No. 88 of 2007 in the abysmal manner assigned to her conduct of the proceedings by the Respondent, would not, in the respectful view of this Court, validly be established by that single conduct of proceedings.
147.It must be shown that the Judicial Officer has demonstrated lack of judgment, knowledge, diligence and ability, to consistently and ably discharge the duties of his or her office. Incompetence cannot be read from one Civil Application dealt with by a Judicial Officer.
148.In re Baber, there was a substantial number of Attorneys and fellow Judges, who gave evidence relating to the conduct of Judge Baber, in judicial work, over a period of time. Reputation and opinion testimony was adduced. Incompetence of a Judicial Officer is to be assessed from cumulative evidence. It is demonstrated by a pattern of inappropriate conduct over a period of time, as held, In re Conduct of Jordan, 290 Or. 669,624 P. 2d. 1074 and 1076 [banc 1981]
149.In finding Judge Baber incompetent, the Court ruled that it did not reach the conclusion based on any one incident or charge, ‘’ but rather on a recurrent pattern of mistaken rulings, over a period of years.’’ It is important to note that the petitioner was charged with judicial incompetence, not misconduct. In re Baber, misconduct was defined as ‘’transgression, dereliction, unlawful or wrongful behaviour, or impropriety that is wilful in character.’’ It was observed that Courts had in the past, used the term ‘misconduct,’ as a convenient collective term for several constitutional standards for removal that connote wrongdoing. Incompetence was held to denote ‘’ inherent incapacity that need not be coupled with wilful wrongdoing. When unaccompanied by wrongful behaviour, incompetency does not constitute misconduct.’’ article 168 [1] of the Constitution of Kenya on removal of Judges, names incompetence as a ground for removal, separate from other grounds – inability to perform functions, arising from mental or physical incapacity; breach of code prescribed for Judges of the Superior Courts by an Act of Parliament; bankruptcy; and gross misconduct or behaviour.
150.The petitioner was not in the view of the Court judged fairly by the respondent. The charge against her was lack of competence. It was based on a single ruling. The ruling itself was made in accordance with the law, and facts presented before the Petitioner by the Parties. The Petitioner exercised an exclusive jurisdiction, in dealing with issues arising or emanating from a decree, issued by the Magistrate’s Court. There were no Magistrates, Judges or Advocates who worked with her, who attested to her incompetence over a period of time. It was not shown that she was no longer capable of discharging the judicial function. She was not declared incompetent based on cumulative evidence. The decisions of the Judicial Officer under disciplinary proceedings on incompetence, must be shown to have been consistently far afield of precedent and the law. They must be shown to amount to egregious violation of fundamental rights, to an extent that the Judicial Officer appears to have embraced impunity towards the law. The court does not think that the ruling of the petitioner in question, or any other of her hundreds of decisions, was shown to fall within these parameters, to result in a finding of incompetence.
151.The petitioner testified that over time, she had worked diligently, and was promoted by the Respondent, heading and establishing Courts, and lastly was appointed as the Deputy Registrar, in charge of the Employment and Labour Relations Court at Kisumu. She had recorded hundreds of rulings and judgments. A competence determination must remain focused on the Judicial Officer’s ability to consistently follow and apply the law over time.
Judicial Discretion, Independence and Immunity.
152 .These concepts were addressed by the Supreme Court of Kenya, in Bellevue Development Company Limited v. Francis Gikonyo & 3 Others [2020] e-KLR.
153.The court does not propose to discuss the concepts in greater depth, beyond what was said by the Supreme Court.
154.The dispute involved 2 Hon. Judges of the High Court of Kenya, Francis Gikonyo and Charles Kariuki, who had been sued by a Party who had appeared before them, and failed to get favourable decisions. Having failed at the High Court and the Court of Appeal in assigning civil liability to the Judges for their decisions, the aggrieved Party, exuding considerable confidence in its cause against the Judges, filed Petition at the Supreme Court, asking the Supreme Court to among other orders, declare that members of the Judiciary do not enjoy absolute immunity under Article 160 [5] of the Constitution.
155.The Supreme Court held that immunity is granted to Judicial Officers, under article 160 [5] of the Constitution of Kenya, where Judicial Officers’ acts or omissions are made in good faith and in performance of their judicial functions.
156.It was explained by the Supreme Court that judicial immunity is based on public policy, allowing Judicial Officers to express themselves freely, in matters brought before them, and have confidence that in carrying out judicial functions, they will not be prosecuted or harassed. The rationale for judicial immunity is the preservation of independent decision-making. The immunity is not for the benefit of the Judicial Officer, but for the administration of justice.
157.The Supreme Court also held that immunity is not a carte blanche for judicial impunity. Judicial Officers must act in good faith. Good faith was defined in the decision, as a state of mind consisting honesty in belief or purpose; faithfulness to one’s duty or obligations; and absence of intent to defraud or to seek unconscionable advantage. Unchecked immunity was found to lead to a disturbing body of jurisprudence, which resulted in denying citizens redress for violations caused by errant Judicial Officers.
158.In Stump v Sparkman 435 US 349 [1978] one of the American decisions cited by the Supreme Court of Kenya in Bellevue Ltd, it was held that the doctrine of judicial immunity, forbade a suit against an Indiana Judge, who had authorized the sterilization of a slightly retarded 15-year old girl, under the guise of appendectomy. The Judge approved the medical procedure without a hearing, after the girl’s mother alleged that the girl was promiscuous. When the girl was mature and married she discovered she was sterile, and initiated civil action against the Judge. It was declared that the Judge enjoyed immunity and was therefore not liable. In Lopez v. Vanderwater 620 F. 2d. 1229 [ 7th Cir. 1980] it was held that a Judge was partially immune from a suit, after he personally arrested a tenant who was in arrears of rent, owed to the Judge’s business associate. The Judge waived the tenant’s right to trial by jury and sentenced him to 240 days in prison. The tenant was only set free upon the intervention of another Judge. In Dykes v. Hosemann, 776 F 2d [11th Cir. 1985], the Judge awarded custody of a child to the father, himself the son of a fellow Judge. The mother was not notified. Immunity doctrine was found applicable to the Judge. There are other horror cases, of Judiciaries gone rogue, but these shall suffice here.
159.Absolute immunity would be a roadmap to judicial authoritarianism and corruption, where Judges cannot be held to account personally for violation of citizens’ civil rights, hence the need to limit immunity to acts done in good faith and in lawful execution of judicial functions.
160.Lastly, the Supreme Court held that Parties aggrieved by decisions of the Judicial Officer have recourse in the appellate system. In egregious illegalities, violations of the judicial oath, or outright illegalities and criminality, mechanisms for removal from office exist. The Supreme Court summarized the doctrine of judicial immunity, as enunciated by the Court Appeal in Bellevue Development Company v. Francis Gikonyo & 7 Others [2018] e-KLR, as follows: -
161.It is indispensable to promote and protect the independence and impartiality of individual Judicial Officers, and the Judiciary as a whole. It is agreed, that judicial independence, is not a prerogative or privilege of Judicial Officers, but a guarantee of everyone’s right to fair administration of justice. The Constitution of Kenya, The International Covenant on Civil and Political Rights and The Bangalore Principles on Judicial Conduct, stress the need for independent and impartial judiciaries, where the individual Judicial Officer is able to discharge judicial functions independently and competently.
162.In C.M.C.C No. 88 of 2007, the petitioner made a decision which in the eyes of this Court was sound and lawful as explained above. She enjoyed decisional independence and was not shown to have acted in bad faith. Her decision was challenged on Appeal. Ought she to have been removed, while the Complainant had exercised his right of appeal? What if the High Court upheld her ruling on Appeal? The Court is persuaded, based on the decision of the Supreme Court, that the petitioner’s independence was disregarded by the respondent. She acted lawfully and in good faith. The respondent was unduly influenced in its decision to remove the petitioner from office, by its perception that the Petitioner disregarded a binding decision of the High Court. The letter of dismissal dated March 27, 2019, attests to this thinking by the respondent. It reads: ‘’… you proceeded to issue orders overturning the said orders of the High Court, which action was tantamount to overturning an order of the High Court, causing grave suffering and inconvenience to the complainant. In essence, you failed to perform your duties in an efficient and competent manner as required by the Judicial Service Code of Conduct and Ethics.’’
163.This conclusion is not supported by evidence as discussed above. It is incorrect.
164.The Constitution of Kenya and other standards of appropriate judicial conduct such as the Bangalore Principles of Judicial Conduct, while requiring Judiciaries to uphold judicial competence and diligence, promote judicial immunity as necessary, in sustenance of stable, accountable and independent Judiciaries. Impediments that hinder the Judicial Officers’ ability to carry out their functions are deprecated. Impediments have been identified to include pressure of various kinds, both intended [deliberate attempts to influence Judicial Officers] and unintended [through circumstances which may lead the Judicial Officers to be restrained in their decisions]
165.The petitioner was expected, in view of the High Court ruling, to be restrained in her own ruling, or plainly, not to exercise her decisional independence, in a matter she was fully seized. There was unintended pressure on the petitioner, from the High Court ruling, to determine the execution dispute as had been suggested by the High Court.
166.It is important to protect the concept of hierarchy of courts established under our Constitution. Equally important, is the respect for decisional independence of the lower jurisdictions, by the higher jurisdictions. There should never be intended or unintended pressure exerted by the High Court on Magistrate’s Court, in decision-making. Judicial Independence demands that we all guard against external, as well as internal pressures. The petitioner guarded her independence and that of the Institution she served.
167.It was alleged in the affidavit of the Chief Registrar, in response to the Petition, that the petitioner conceded mistakes may have taken place, and that she was ready to learn, during the disciplinary hearing. This appears to the Court, to have taken place, after the Petitioner was repeatedly put to task by the Commissioners. She was persistently asked by Senior Judges in the Disciplinary Committee, why she overturned a decision made by another Senior Judge. It is possible that the petitioner wilted, after heavy exertion. The remorseful comments on the part of the petitioner, cannot be taken at face value, or lead to the conclusion that she admitted to being incompetent.
168.The court is satisfied that there was no valid reason or reasons, to warrant the dismissal of the petitioner from service by the respondent.
Remedies
169.The petitioner seeks a declaratory order, that the respondent acted unlawfully, in analysing her ruling to determine her competence. She invokes Apollo Mboya v. Judicial Service Commission & Another; Justice Kalpana Rawal & 4 Others [ Interested Parties], [2020] e-KLR, where it was held that, where the respondent, in dealing with complaints against Judicial Officers from litigants, realizes that such complaints relate to the merits of a decision, must drop the complaints like a hot potato.
170.The court does not think that the respondent could have dealt with allegations made against the petitioner, concerning her competence, without looking into the merits of her ruling and that of the High Court. Although the respondent kept reassuring her during the disciplinary hearing, that it was not sitting on Appeal against her ruling, it was inevitable, to make an informed decision on the petitioner’s competence, to delve into the merits of her decision.
171.The respondent appears in fact, to have failed in fully analysing the merits of the petitioner’s ruling, and therefore reached at the wrong finding, that she had overturned the ruling of the High Court. If the respondent is to be faulted, it is not for delving into the merits of the ruling made by the petitioner; it is for delving into the merits half-heatedly, resulting in a flawed conclusion that the petitioner was incompetent. It was not possible for the respondent to have an informed view of what the petitioner and the High Court said, with regard to ownership and possession of the lorry, without going into the merits of the rulings in issue. This Petition would not be resolved, without looking at the merits in the rulings subject matter of the disciplinary hearing. The Respondent similarly would not resolve the charge of incompetence, without looking at the merits of the rulings made by the petitioner and the High Court. Declaratory order sought at paragraph 63 [a] of the Petition is declined.
172.There are far too many laws alleged to have been contravened by the respondent, under paragraph 63 [b] of the Petition. When too many laws are cited in any Petition, there is always a risk of imprecision. Unfortunately, many litigants appear to think that the more laws they cite, the higher the probability of success. The court does not have jurisdiction to determine whether the respondent flouted Vetting of Judges and Magistrates [Amendment] Act 2013. As stated from the outset, the process and outcome at the particular Board was found to be null and void for want of jurisdiction. Suffice it to say, it is declared that the decision made by the respondent against the petitioner, Contravened articles 41 [1], 47[1], 50, 160[5], 236[a] of the Constitution, and substantive statutory rights, under sections 43 and 45 of the Employment Act, 2007.
173.The prayer to quash the charge, proceedings and determination by the respondent cannot be granted wholesale. The court has concluded that the charge was properly drawn. The 5 complaints reached the Respondent regularly. Details of the complaints were stated. Proceedings took place in accordance with the Judicial Service Act. Those proceedings led to dismissal of other charges against the Petitioner. What becomes of those other charges, if the proceedings leading to their dismissal are quashed? There is no justifiable reason to quash a charge sheet that was regularly drawn, and proceedings regularly convened and concluded.
174.The fault is with the determination, concluding that the petitioner suffered judicial incompetence. That decision, is brought into this court and is hereby quashed.
175.Paragraph 63 [d] seeks compensation for breach of petitioner’s fundamental rights and freedoms under articles 27 [1] 28, 41, and 236 [a] and [b]. The court is not persuaded that the petitioner was denied rights under article 27 of the Constitution, on equality and freedom from discrimination. Her Petition is not about discrimination. The focus of her grievance similarly was not on article 28 on the right to human dignity. The court does not think that the conduct of regular disciplinary proceedings against her, violated her dignity. She was not removed from office without due process of the law, in violation of article 236 [b] of the Constitution. She was however, victimized for having performed the functions of her office in accordance with the Constitution or any other law, in violation of article 236 [a]. That violation has been redressed elsewhere in this Judgment. The Constitution and the Judicial Service Act mandates the respondent to administer disciplinary proceedings and sanctions against Judicial Officers. Exercise of that mandate was not shown to violate the petitioner’s right to inherent dignity, warranting compensation by the respondent.
176.The prayer in paragraph 63 [e] on absolute immunity has adequately been addressed in the Supreme Court decision Bellevue Development Company Ltd v. Francis Gikonyo & 3 Others [2020] e-KLR. The Court would only state, that the Petitioner enjoyed judicial immunity, within the parameters drawn in the decision of the Supreme Court.
177.Paragraph 63 [e] is on reinstatement. This remedy has support on authority of the Court of Appeal, in Judicial Service Commission & Another v. Lucy Muthoni Njora [2021] e-KLR. It was held that ‘’ once the dismissal decision involving a State Officer is adjudicated unlawful, null and void, reinstatement is an automatic remedy.’’ The Petitioner was a State Officer as defined under article 260 of the Constitution. The Court has determined that her dismissal was unlawful. The Court of Appeal in this decision also held that an order for payment of back- salary and benefits, provided adequate compensation. This holding addresses the prayer for compensation.
178.The court is under obligation to grant an order of automatic reinstatement to the Petitioner, and hereby grants the order, without loss of rank, salary and benefits, with effect from the date of dismissal.
179.No order on the costs.
In sum, It is ordered: -a.It is declared that the petitioner’s dismissal by the respondent from judicial service, violated the Petitioner’s constitutional rights under articles 41 [1], 47[1], 50, 160 [5] and 236 [a] of the Constitution and substantive statutory rights under sections 43 and 45 of the Employment Act, 2007.b.The decision by the respondent, dismissing the petitioner from judicial service on the ground of incompetence is brought into this Court, and is hereby quashed.c.The petitioner is granted an order of automatic reinstatement, without loss of rank, salary and benefits from the date of dismissal.d.No order on the costs.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 26TH DAY OF NOVEMBER, 2021.JAMES RIKA JUDGE
