1.Bryan Mandila Khaemba, the respondent herein, filed a petition in Nairobi ELRC Petition No 100 of 2019 dated 17th June 2019 and amended on 26th June 2019, as against the Chief Justice of the Republic of Kenya and the Judicial Service Commission (JSC), who are the 1st and 2nd appellants herein respectively. He stated therein that he was employed by the JSC as a District Magistrate II (Prof) on 1st July 2020, and after serving for 9 years, rose through the ranks to the position of Principal Magistrate.
2.On 23rd May 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 v 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 30th May 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 6th June 2019.
3.On 13th June 2019 the Chief Justice exercising delegated power from the JSC, wrote to the respondent reiterating the contents of his previous letter and further communicating that: firstly, the respondent had no jurisdiction to entertain Kiambu Miscellaneous Criminal Application No 222 of 2019; secondly, that his actions amounted to gross misconduct contrary to section D7.2 (xviii) of the JSC Human Resources (“ HR") Policies and Procedure Manual and rule 3 & 12 of the JSC Code of Conduct and Ethics; thirdly, that the respondent should within 14 days show cause why disciplinary action should not be taken against him and finally, that the respondent stood immediately suspended until the hearing and determination of his disciplinary case and that he would receive nil salary.
4.The respondent contended that the said letter from the Chief Justice amounted to constructive dismissal for the reasons that the contents of the said correspondence was widely published and circulated in the mainstream print media even before he received it, subjecting him to a sham trial through publicity thus effectively prejudiced any disciplinary proceedings that may eventually ensue respecting the issue. In addition, that the Chief Justice had already determined that the respondent was guilty of gross misconduct and finally, not only barred the respondent from accessing his place of work, but also withheld his entire salary and benefits in breach of the Constitution, the Employment Act and the JSC’s HR Policies and Procedure Manual.
5.The respondent detailed the particulars of breach of his constitutional rights and freedoms, the unconstitutionality of sections of the Third Schedule of the Judicial Service Commission Act and JSC HR Policies and Procedure Manual relied upon by the appellants, the unconstitutionality of his suspension letter, and the prejudice he had suffered. He accordingly sought various declarations in this regard, the quashing of the Chief Justice’s decision, his reinstatement, and both general and punitive damages.
6.In response, the 1st and 2nd appellants filed a replying affidavit and further affidavit sworn on 8th July 2019 and 24th July 2019 respectively by Anne Atieno Amadi, the Secretary of the Judicial Service Commission. The appellants cited various articles of the Constitution and sections of the Judicial Service Act relied upon in undertaking the disciplinary action against the respondent, and that the Chief Justice invoked the delegated powers pursuant to paragraphs 17 of the Third Schedule of the Judicial Service Act by requiring the respondent to show cause within 14 days why disciplinary action should not be taken against him, and suspended him. However, that the respondent did not respond to the said letter, but instead made a complaint to the JSC and filed the petition that is the subject of this appeal.
7.After hearing the parties, the trial Judge delivered a judgment on 30th August 2019 in favour of the respondent, and made a declaration that the 1st appellant’s letter dated 13th June 2019 was illegal, null and void for being in contravention of article 41, 47(1) and 236 of the Constitution, and infringed the respondent’s fundamental rights guaranteed under articles 1 and 47(1) of the Constitution. The decision in the said letter was also quashed by the trial court, and the appellants were further prohibited from implementing the said decision. 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.
8.The appellants were aggrieved by the said decision, and lodged a Memorandum of Appeal dated 24th October 2019, in which they raised five grounds of appeal on the findings made by the trial court in relation to the Third Schedule to the Judicial Service Act and the appellants’ Constitutional and statutory powers to discipline the respondent . The grounds, together with oral highlights, were urged before us on 13th July 2021 by learned counsel Moses Kipkosgei and Mr Ochola for the appellants, and learned counsel Nelson Havi, Micheal Osundwa and Irene Kashindi for the respondent.
9.The main contest in this appeal is the interpretation and construction of the Third Schedule to the Judicial Service Act vis-a-vis the appellants’ constitutional and statutory powers to discipline judicial officers. The three main issues urged in this respect were as follows:
11.We shall therefore proceed to consider the above issues by re-evaluating the evidence adduced in the trial court and arrive at our own conclusions of fact and law. In this regard we will only depart from the findings by the trial court if they are not based on the evidence on record, or where the trial court is shown to have acted on wrong principles of law, as held in Jabane v Olenja  KLR 661.
12.With regards to the first issue, on the conditions applicable to the exercise of the Chief Justice’s disciplinary powers to suspend a judicial officer, the appellants submitted that paragraph 15 of the Third Schedule to the Judicial Service Act, delegated the powers of the Judicial Service Commission to the Chief Justice and the paragraph enjoyed a presumption of constitutionality and legality. Reliance was placed on Ndyanabo vs Attorney General  EA 485 for the proposition that every Act of Parliament had a presumption of Constitutionality and the burden of proof lay with every person who alleged otherwise.
13.Further, that it was not in contention that disciplinary proceedings commenced the moment the Chief Justice framed the charge against a judicial officer as laid down under paragraph 25(1) of the Third Schedule to the Judicial Service Act as was held in Judicial Service Commission vs Gladys Boss Shollei & Another  eKLR where the gist of the case was paragraph 25 of the Third Schedule which dealt with proceedings of dismissal of Judicial Officers and staff showed that disciplinary proceedings were initiated when the Chief Justice framed the charge which was then forwarded to the concerned officer and a committee or panel appointed to investigate the matter.
14.The appellants stated that the respondent was issued with a letter to show cause why disciplinary action should not be taken against him, the respondent instead of attending disciplinary proceedings, responded to the letter to notice to show cause terming it constructive summary dismissal.They urged that the respondent through his own action elected not to subject himself to the Disciplinary Committee or panel and therefore cannot fault the Chief Justice for his actions or be allowed to benefit from his wrong doing. For this proposition, they placed reliance on the case of Suraya Holdings Limited vs ICICI Bank Limited HCCC No 85 of 2015. Also cited were the cases of Jackson Butiya vs Eastern Produce Cause No 335 of 2011, Duncan Ndegwa Muriuki vs Lasit Limited  eKLR , and Pamela Nelima Lutta vs Mumias Sugar Co Ltd  eKLR for a similar proposition that an employee who squanders the internal grievances handling mechanisms provided by the employer cannot claim that he or she was not heard.
15.The appellants further submitted that the respondent did not enjoy judicial immunity over his actions which resulted in the show cause letter as to why disciplinary action should not be taken against him. They placed reliance on the case of Judicial Service Commission v Davis Gitonga Karani  eKLR for the proposition that, what the respondent was being disciplined for, fell within the purview of judicial independence, not just involving the decision making process, but for also being, in the entire circumstances of this case, devoid of good faith. They further cited the decision in Judicial Service Commission v Beatrice Nyambune Mosiria  eKLR for the proposition that the Employment and Labour Relations Court must not substitute its own view for those of the employer, and that its function is to determine whether the facts and circumstances fell within or outside the band of reasonableness.
16.The respondent in his submissions dated November 2020 urged that the trial court clearly appreciated that the 1st appellant initiates disciplinary proceedings by framing charges and forwarding the statement of charges to the officer concerned under paragraph 25 of the Third Schedule, and that at this stage the proceedings undertaken by the Chief Justice will be in the nature of preliminary confidential inquiry prior to the decision by the 2nd appellant as to whether disciplinary proceedings should continue against the officer and rightfully held that it would serve no purpose to suspend an officer at the preliminary stage of the inquiry. Therefore, that while the trial court was of the opinion that the disciplinary powers were properly delegated and vested in the Chief Justice as head of the Judiciary, the trial court emphasized the need for compliance with the safeguards provided in paragraphs 16, 17 and 25 of the Third Schedule to the Judicial Service Act. Further, that the Chief Justice’s powers to suspend a judicial officer are not absolute under paragraph 17(2), which were the provisions that were employed to suspend the respondent.
17.The Third Schedule to the Judicial Service Act contains provisions relating to the appointment, discipline and removal of judicial officers and staff.Paragraph 15 of the Third Schedule provides for the disciplinary powers of the Chief Justice as follows:
18.The Commission referred to in paragraph 15 is the Judicial Service Commission, and its disciplinary powers with respect to judicial officers are provided in article 172(1)(c) of the Constitution. Under this article, one of JSC’s functions is to appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament. As noted by the trial court in its judgment, paragraph 15 has an error that requires to be corrected by amendment, as regards the reference to the applicable paragraphs on the powers to interdict and suspend officers, which are paragraphs 16 and 17 of the Third Schedule respectively, and not paragraphs 17 and 18.
19.There are two conditions that are provided for the exercise of the power to suspend an officer under paragraph 17 of the Third Schedule. The first is stated in sub paragraph 1, which is when an officer has 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 sub-paragraph 1 obtains, the Chief Justice has 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. This condition was not applicable in the circumstances of the respondent’s disciplinary process, as no evidence was availed by the appellants that the respondent was charged with, or convicted of any criminal offence.
20.The second condition is in sub paragraph 2 of paragraph 17 of the Third Schedule, which provides that the Chief Justice may suspend an 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. Therefore, there is a condition precedent that dismissal proceedings must be undertaken before the power of suspension is exercised. The dismissal proceedings are set out in paragraph 25, of which sub paragraphs 1 to 3 provide for the procedure to be followed by the Chief Justice as follows
21.A plain reading and interpretation of the provisions of paragraph 25 show 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, three, an invitation and opportunity to the officer concerned to state his or her case; and four, if the officer fails 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. The question to be answered therefore, is at what stage of these proceedings the Chief Justice is deemed to be able to make an opinion that an officer ought to be dismissed.
22.The trial court in this respect found that the Chief Justice undertakes proceedings in the nature of a confidential preliminary inquiry, and that prior to the decision by the JSC that disciplinary proceedings should continue against an officer, there would be no ground for the Chief Justice to suspend the officer as is provided for and envisaged in paragraph 25(3) of the Third Schedule. We agree with the trial Judge for the following reasons. Firstly, as shown in the foregoing, it is a condition precedent that before a suspension is 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 must be undertaken. Secondly, 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 is being effected pursuant to Paragraph 17(2) of the Third Schedule. Lastly, under the provisions of Paragraph 17(2) as read with paragraph 25 of the Judicial Service Act, the Chief Justice can only make an opinion as to whether a judicial officer should be dismissed after considering the said officer’s 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.
23.It is notable in this respect that the Chief Justice in his letter of 30th May 2019 merely required the respondent to provide an explanation within fourteen (14) days, of the circumstances under which he went to court to handle the subject matter. There was no charge in the said letter, nor can it be construed to be a charge, since the letter being in the nature of a request for information was merely an inquiry. Black’s Law Dictionary, 12th Edition defines an inquiry at page 913 as “a request for information, either procedural or substantive”. A charge on the other hand is defined at page 282 as “a formal accusation of an offence as a preliminary step to prosecution” The actual charges against the respondent were revealed in the Chief Justice’s letter of 13th June 2019 , where after noting that the respondent’s explanation was unsatisfactory, the Chief Justice formally informed the respondent of the wrongs he was deemed to have committed, namely that the respondent had no authority to handle the matter the same having not been allocated to him and having had no jurisdiction, and that his actions amounted to gross misconduct contrary to the Human Resources Policies and Procedures Manual section D 72 (xvii) and was a breach of the Judicial Service Code of Conduct and Ethics rule 3 & 12.
24.By dint of the same letter, the Chief Justice then proceeded to suspend 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 this extent, we find that 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 , and that the trial court did not err in its findings in this respect.
25.Coming to the second issue as to whether a judicial officer can be suspended without pay, the appellants submitted that, although paragraph 17(3) of the Third Schedule to the Judicial Service Act provided for alimentary allowance, out of abundance of caution considering the weight and gravity of the evidence against the respondent, they recommended that he be entitled to nil salary in order to protect the public from eventual loss that it would have incurred once the charges were confirmed. Reliance was placed on the case of Grace Gacheri Muriithi v Kenya Literature Bureau  eKLR for the proposition that whether an employee will be paid during the period of interdiction will depend on the outcome of the disciplinary proceedings.
26.The respondent on his part submitted that this court has held in several decisions, that it was unlawful for an employee to be suspended without pay, and cited the case of James Njuguna Muchiri v Armed Forces Canteen Organization (AFCO)  eKLR for the proposition that there was no inherent right to suspend an employee without pay and that any power to do so must arise from the terms of the contract. Worse, that the alimentary allowance permitted under paragraph 17 of the Third Schedule to the Judicial Service Act was not available to the respondent as per the suspension letter.
27.As noted by this court in James Njuguna Muchiri v Armed Forces Canteen Organization (AFCO)  , the starting point in any inquiry as to whether suspension without pay is legal is the terms of employment. Paragraph 17(3) of the Third Schedule to the Judicial Service Act in this respect provides that while an officer is suspended from the exercise of the functions of their office they shall be granted an alimentary allowance in such amount and on such terms as the Commission may by regulations determine. An allowance is a share or portion of money that is assigned or granted. The Concise Oxford English Dictionary defines alimentary as “relating to nourishment or sustenance”.
28.The terms of a statute withholding pay to an employee are essentially of a penal nature, and like all penal provisions must be construed restrictively, and a person should not be penalized except under clear law. The term penal and the rule against doubtful penalisation is explained as follows in Halsbury’s Laws Vol 44 (1) at paragraph 1240:
29.We therefore are in agreement with the trial court’s findings in this regard that there is 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, has its basis on the Constitutional provisions on fair labour practices and the concept of reasonableness Lastly, it is also notable that repository of the power to determine the pay a judicial officer on suspension in paragraph 17(3) of the Third Schedule is the Judicial Service Commission and not the Chief Justice, who is not therefore empowered to make any decision as regards the pay of judicial officers on suspension.
30.We concur with the trial court’s findings that the respondent’s entitlement, was not diminished in any manner for want of provision and regulations by the JSC in this regard. Indeed, this is one of the reasons why suspensions of judicial officers in the circumstances such as those of this appeal ought to be sanctioned by JSC, so that it can 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 this court is thus directed to send a copy of this 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 this appeal, however, it suffices that the suspension of the respondent with nil pay was illegal.
31.The last issue before us is whether courts can interfere with the disciplinary process initiated under the Third Schedule. The appellants in this regard submitted that courts should not interfere with internal disciplinary processes initiated against an employee. The appellants draw this court’s attention to the decision in Republic vs County Secretary and Head of Public Service, Bomet County & another ex parte Benard Sowek  eKLR for the proposition that a court cannot interfere with an internal disciplinary process unless the process is in contravention of the Constitution or legislation or is in breach of the parties’ agreement/ contract or the process is manifestly unfair in the circumstances. Further, that the trial court’s decision to hear and determine the claim filed by the respondent not only interfered with the appellants’ constitutional and statutory powers to discipline their staff but also amounted to micromanaging the appellants in exercise of that power.
32.The decision in the case of Judicial Service Commission v Beatrice Nyambune Mosiria  eKLR was cited for the proposition that if JSC was found to have violated the rules of procedure, or have been unreasonable, the trial court could not constitute itself into a disciplinary tribunal, instead it ought to have remitted the matter back to the JSC. The appellants in conclusion stated that had the trial court considered the above issues, it would have arrived at a different conclusion and ordered the respondent to subject himself to the disciplinary proceedings recommended by the 1st appellant herein.
33.The respondent on his part submitted that as a general rule, the court should not interfere with internal disciplinary processes except in exceptional circumstances which may include but not limited to a situation where there was a clear violation of the law or the employer’s disciplinary procedure, or where the disciplinary procedure was being used by the employer to remove an employee from employment for no valid reason or for reasons not connected with the employee’s conduct or performance as the case herein. The decision in George Mworia v Water Resources Management Authority & 2 others  eKLR was cited for this position.
36.Were there circumstances in this appeal that justified an intervention by the court? It has been demonstrated and found that the disciplinary process by the 1st appellant against the respondent was marred from the start with illegality and procedural irregularity. It is also evident that the Chief Justice had already made a finding in the letter dated 13th June 2019 that the respondent’s actions amounted to gross misconduct, and therefore, as regards the respondent’s culpability. Lastly, 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 respondent’s rights, as was similarly noted by this court in Judicial Service Commission & Another vs Lucy Muthoni Njora  eKLR.
37.In conclusion, this court also finds that 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.In the circumstances, the trial Judge also did not err in granting orders to restore the respondent to the status he was before the impugned disciplinary proceedings.
38.The appellants’ appeal therefore fails for the foregoing reasons. We therefore make the following orders: