Mongare v Judicial Service Commission (Employment and Labour Relations Petition E029 of 2021)  KEELRC 13570 (KLR) (20 December 2022) (Judgment)
Neutral citation:  KEELRC 13570 (KLR)
Republic of Kenya
Employment and Labour Relations Petition E029 of 2021
HS Wasilwa, J
December 20, 2022
Alice B Mongare
Judicial Service Commission
1.The Petitioner moved this Court vide a Petition dated 12th December, 2021 seeking the reliefs that the Judicial Service Commission actions; -a.Contravened and was inconsistent with Article 1, 2(1-4); 3; 4; 10(2)(a)(b)(c); 19(D)(2) (3)(a); | 20(1-4); 21(D); 25(a)&(c);_ 27(1-4);| 28; 35, 41; 47(D)(); 50); 157; 159(1)(2)(a)(e)(d); 160(1)(5); 161; 172(1)(c) and 236(a)(b) 232(1)(e)(f); 249(1)(a)(b)(c) & (2)(a); 252(a); Section 62, 63, 107-109 of the Evidence Act; Section 3 and 4; rule 18; 23(1); 26(1) & 27(1) of the 3rd Schedule of JSA and section 4 of the FAAA and was unlawful, unconstitutional null and void and not in public interest, stands quashed and set aside.b.Was arbitrary, unreasoned; biased; unlawful; contravened the Petitioners legitimate expectation; breach of natural justice; without evidence and merit; ultra vires the constitution and law, null and void ab initio; stands condemned, quashed and set aside.c.In purporting to retire the Petitioner in public interest yet conduct proceedings in secrecy, denial or reports of investigation, recorded reasons; and chance to cross examination of accusers and adduce evidence in a fair and public hearing was not in public interest and contravened Fair Hearing; National Values and Principles of Governance & Principles of Public Service under Article 10 (2) (a) (c); 35; 47(2); 50(1) as read with 25(c); and 232 (1) (e)and (f) thus unconstitutional null and void.d.Contravened and was inconsistent with the decree of the SCOK under Article 163(7) in Evans Kidero, [supra] [Par 299,300,311] Alnashir Popat [supra] [60, 63,65,73] Martin Wanderi. [supra] [Par 124-129.] Anuar Loitiptip [Par 80-82] as pleaded in par 23 of the Petition; hence null and void ab initio and stand condemned, quashed and set aside.e.Being unconstitutional null and void by injunction under Article 2(1-4) and 236, the de jure position is that the Petitioner’s office and rank subsists unless and until severed in conformity with the constitution and the law; therefore, a mandatory injunction is issued. restoring the Petitioner’s Rank of Principal Magistrate without loss of salary, pension and accrued benefits from the date they fell due.f.Contravened and violated Petitioner’s fundamental rights and freedoms under Article 27(1); 28; 29 (A) 35, 41, 47 and S0(1) as read with 25(a)&(c); and compensation under Article 23 do issue as a distinct constitutional imperative / relief / remedy / in their vindication.g.An award of exemplary and aggravated damages for the JSC’s arbitrary, tortuous, oppressive, and unconstitutional conduct and gross violation of the constitution.h.That the Petitioner’s constitutional right to bring this action under article 258 and Article 22 and 23 and the Honorable Courts concomitant jurisdiction to interpret and apply the constitution and issue such-reliefs and declarations cannot be limited by any law unless as prescribed by the constitution.i.Costs of suit & Interest.
Summary of facts.
2.The Petitioner is a resident of Nakuru County and former Senior Resident Magistrate stationed at Nyahururu Law Courts. She avers that she was employed by the Judiciary on 2nd July, 2004 as a Resident Magistrate and served in various stations such as Nakuru, Eldoret and Nyahururu Courts. She was promoted to be the senior Resident magistrate and later Principal Magistrate a position which she held briefly before being differed.
3.It is her case that in the year 2011, there was mass promotion of magistrates that saw her get promoted to Principal magistrate however by a letter of 22nd November, 2011, the said promotion was differed on allegation that there was a complaint raised by an advocate in Nyahururu that was pending for investigation and determination, which matter was not investigated upon in accordance with Section 26(5) of the Judicial Service Act as read with 3rd Schedule of the said Act.
4.It is averred that the head of station at the time who is ordinarily tasked with investigation of any claim facing a judicial officer, requested the said advocate for further particulars of the complaint, which request was not acted upon. Nevertheless, that the Respondent proceeded with adverse action against her without any lawful basis.
5.She states that the letter of inquiry dated 22nd April, 2011 was not a charge under rule 26(1) of the 3rd Schedule of the Judicial Service Commission Act but that the Chief Justice and the Respondent failed to conduct hearings and allow her cross examine the complainants in accordance with the dictates of fair hearing provided for under Articles 47(1), 50(1), 25(c), 160(5) and 236 of the Constitution. Also that she was not served with the letter and documents the Respondent was relying upon in making its decision.
6.It is her case that her response of 7th May, 2012 was not controverted but that the Respondent went ahead to suspend her pending investigation which suspension proceeded till 2015 when her salary was stopped.
7.It is her contention that the issues raised with regard to Civil Case Number 14 of 2011 was based on consent judgment that she had no control of but to accept the wishes of the parties through their advocates. With regard to PMCR 2053 of 2010 and Succession Cause No. 93 of 2009, the Petitioner states that they were handled by her colleagues; Hon Kiptoon, Hon Obara and Hon. Chepseba. With regard to Criminal case number 265 of 2012, she stated that her signature was forged and the accused admitted to it. With regard to civil case number 99 of 2009, which the Respondent used to retire her, she states that parties in that case fixed the matter for hearing by consent and at the time of hearing both parties were absent forcing her to order parties to take a date at the registry. She also stated that the signature on Criminal case number 265 of 2012 was a forgery. She denied releasing the convict in the stated case and that in fact she was the one that rearrested the convict on learning of his release and upon revision in High Court the High Court confirmed that her signature had been forged.
8.She avers that despite knowing the circumstances surrounding criminal case number 265 of 2012 , she was invited for disciplinary hearing vide the letter of 25th June, 2012 however on 22nd August, 2012 she received another letter of the registrar of the judiciary differing the said hearing without disclosing the reasons thereof. She added that she was not served with investigations report and all the documents the Respondent was relying upon, neither was she informed of her right to be accompanied by a representative or a counsel in the said hearing as such the Respondent became the investigator, accuser, complainant, Court, 1st Appeal and 2nd Appeal.
9.It is contended that the Respondent did not have jurisdiction to reopen the issue that was dealt with in the High Court in the revision case. Further that criminal cases fall under the mandate of the Director of Public Prosecution who did not raise any complaint on the said case, raising question as to the genuineness of the issue raised before the Respondent.
10.It is her case that the Respondent violated rule 18 of the 3rd Schedule of the Judicial Service Act and Rule 27 in retiring her after being exonerated by High Court. Further that Rule 24 was violated when the Respondent failed to make specific finding on each of the allegation leveled against her. Also that the proceedings began without prior investigation contrary to Rule 26.
11.She avers that she was arrested and charged together with the accused person in the very Court she was in charge of embarrassing and humiliating her. She also contends that the case delayed in Court before it was concluded to her detriment. That the criminal case was filed in bad faith and in violation of Article 160(1)(5) of the Constitution and Section 45 of the Judicial Service Act.
12.The Procedure leading to her retirement is that, she received a letter dated 20th December, 2012 conveying the decision of the Respondent to commence disciplinary proceedings against when she was still defending the criminal charges preferred against her which was against the provisions of Rule, 18, 26 and 27 of the 3rd Schedule of Judicial Service Act as read with Article 47, 172, 236 and 2(4) of the Constitution.
13.She avers that the Respondent usurped the powers of the Chief Justice in retiring her in public interest when the said powers have been preserved for the Chief Justice and that the Chief justice instead merely communicated the said decision.
14.With regard to violations of the constitution the Petitioner avers that the Respondent did not furnish her with the documents they were relying upon during the disciplinary hearing contrary to Section 23 of the 3rd Schedule of Judicial Service Act as read with Article 172(1) (c) of the Constitution. The said action was also in violation of Section 4(3)(f) &(g) of the Fair Administrative Actions Act and Sections 107-109 of the Evidence Act.
15.It is the Petitioner’s case that the reference of her disciplinary care before the Respondent was premature, unlawful and in violation of Rule 26 of the Judicial Service Commission Act because there was no preliminary investigation carried before the said decision was made. Also that the Petitioner was not granted a proper opportunity to know the entire case against her in order to make a proper response.
16.It is averred that the actions by the Respondent to retire the Petitioner on grounds of public interest violated section 27 (1) of the 3rd schedule of the Judicial service Act, since the Chief Justice did not carry out its mandate of receiving carrying out preliminary investigations to verify all complaints raised and make recommendations to the Respondent for further action but in this case the Chief Justice merely communicated the decision of the Respondent and in effect illegally delegated its powers and functions under the Act. Further that the decision to retire the Petitioner was made without prior investigations contrary to the law and rules of natural justice.
17.The Petitioner also stated that the Respondent encroached on the mandate of the Director of Public Prosecution in the way it handled the criminal charges facing her in total violation of Articles 157 and 259(11) of the Constitution. Also that the actions of the Petitioner to raise issue with the illegal release of the accused person in Republic V Johnson Kinyua Gachigi was used against her contrary to Article 160(1)(5) and 161 of the Constitution as read with Section 45 of the Judicial Service Act.
18.It is averred that the Respondent violated Articles 10(2)(a)(b) &(c) and 232 of the Constitution which are the pillar of Judiciary Transformation Framework(JTF) and Sustaining Judiciary Transformation (SJT) and standards of service under section 3 and 4 of the Judicial Service Act in the way in which disciplinary proceedings were carried out without prior investigations and evidence thereof.
19.The Petitioner also states that the Respondent violated her inalienable rights provided for under Articles 47(1), 50(1) & 25(c) of the Constitution. She also stated that she was discriminated against when she was forcefully retired when her criminal case was ongoing contrary to Rule 18(2) of the 3rd Schedule of the Judicial Service Act, when other judicial officer who had similar issue being G.B.M Kariuki J and Chitembwe J were allowed back to the bench after hearing of their criminal charges.
20.She states that her right to dignity under Articles 10(b) and 28 of the Constitution was infringed when the Respondent stopped her salary, subjected her and her dependants to financial suffering and economic embarrassment as they resorted to depending on others.
21.It is her case that the loss of employment subjected her to cruel, inhuman and degrading treatment and punishment contrary to Article 29(d),(f) as read with Article 25 (a) of the Constitution.
22.It is stated that the Respondent’s treatment until her termination was in violation of fair labour practices contrary to Article 41 of the Constitution because she was removed from service while proceedings were pending contrary to Rule 18 of Judicial Service Act.
23.The Petitioner also stated that the Respondent’s action contravened her legitimate expectation because she had been advised by the Respondent and the Chief registrar to await the outcome of the criminal case before the proceedings could be commenced only for them to renege their word and eventually retire her while the criminal proceedings leading to her termination were pending in Court.
24.The Respondent opposed the petition and filed a replying affidavit deposed upon on 12th December, 2021 by Hon. Anne A. Amadi, the chief Registrar of the Judiciary. In her affidavit the affiant states that the Respondent is established under Article 171 of the Constitution with its function laid out under Article 172 of the Constitution to include; receive complaints, investigate and discipline Registrars, Magistrates, Judicial officer and other staff as prescribed under Judicial Service Act.
25.On that note, the disciplinary process and removal of judicial officers and other staff is set out under Section 32 of the Judicial Service Act as read with part IV of the Third Schedule thereto and retirement as a punishment is provided for under paragraph 27 of the said schedule.
26.With regard to the events leading to the retirement of the Petitioner, the affiant states that the Respondent received several complaints against the Petitioner while she was serving as a magistrate in Nyahururu Law Courts. These complaints emanated from advocates practicing in the said station. Their complaints against the Petitioner include; receiving a traffic of litigants in her chambers while she was not sitting, harassing and threatening counsel and making comments that she will rule against them, intimidating junior counsel who resulted to avoiding practicing in her Court, commencing proceeding late and at times after midday without notice, failing to consider submission by counsel and throwing them in her chambers as recovered during investigations, failing to write and deliver her judgments and rulings on time and upon writing them, she backdated them and forward the file to the registry impeding on the counsel and litigants timelines of Appeal, altering judgements rendered by other judicial officers, at times decline to approve surety unless bribed among others.
27.In addition to the complaints above, the Respondent on 12th March, 2012, received complaint from the Law Society of Kenya forwarding issues against the Petitioner such as; reviewing CR case number 265 of 2012 suo moto which judgement had been given by Hon. Kiptoon sentencing the accused to 2 and half years in prison and changed to fine of Kshs 10,000, with regard to CR number 313 of 2012 where the accused was released on a bond with one surety by Hon. Kiptoon, the Petitioner reviewed the term and released the accused on a cash bail of Kshs. 5,000. In other criminal cases she released accused persons and or fined them contrary to what is provided under the law.
28.While these complaints were pending before the Respondent, Criminal charges were preferred against the Petitioner in Nakuru for the offense of conspiracy to defeat justice and interfering with witnesses contrary to section 117 (c) of the Penal Code. The particular files of concern were criminal case number 247, 32, 12 and 265 of 2012.
29.The Respondent on the other hand, following the numerous complaints against the Petitioner, initiated disciplinary proceedings and issued a show cause letter dated 26th April, 2012 setting out the complaints lodged against the Petitioner and giving her 21 days to respond. On 7th May, 2012 the Respondent received a response and a disciplinary hearing was scheduled for 7th September, 2012 which was deferred to allow for further investigation, this information was transmitted to the Petitioner vide the letter of 25th October, 2012 and the new date for hearing was slated for 29th November, 2012.
30.After hearing the Petitioner and considering her response, the Judicial Service Commission Human Resource Management committee made recommendation for the retiring of the Petitioner on public Interest in accordance with paragraph 27 of the 3rd Schedule of Judicial Service Act. This recommendation was considered by the Chief Justice who adopted the decision of the committee and informed the Petitioner of the said decision and invited further representation from the Petitioner. The Petitioner responded however her response did not change the decision of the opinion of the Chief justice who made further recommendation for the retirement. Following the approval of the Chief Justice, the report by the disciplinary committee and the Petitioner’s response, the Respondent resolved to retire the Petitioner which decision was communicated by the letter of 23rd July, 2013.
31.Upon receiving the communication on retirement, the Petitioner challenged the same and lodged an appeal dated 7th August, 2013 which was considered in the meeting of 6th December, 2013 disallowing the same. A review was subsequently filed on 18th February, 2014 which ground did not convince the Respondent to change its decision as such the review was disallowed. Upon the determination of the criminal case in Nakuru, the Petitioner was discharged under section 210 of the Criminal Procedure Code and she immediately filed another appeal, however the Respondent indicated that its functus officio as the Petitioner had exhausted her right of appeal provided for under Section D.9(i) of the Respondent’s Human Resource Policies and Procedures Manual.
32.On the allegations of violation of the Constitution, it was stated with regard to violation of Article 172 of the Constitution that she was denied documentary evidence that the charges and or complaints against the Petitioner were forwarded to her vide the letter to show cause dated 26th April, 2012 which gave detailed information on the charges against her, which she duly responded to. Furthermore that the complaint came from Court Users Committee members and the Petitioner did not request for any further documents in filling her response.
33.The Respondent with regard to violation of sections of Fair Administrative Actions Act, stated that the said Act is not applicable in this case because the same was assented to on 27th May, 2015 and came into force on 17th June, 2015 way after the disciplinary proceedings were concluded. Furthermore, that the Petitioner was subjected to disciplinary process which she appeared before the Respondent’s management committee and defended herself.
34.On the allegations that the Respondent acted illegally by instituting disciplinary proceedings while criminal charges were pending, the Affiant states that the Disciplinary issues surrounding the Petitioner were first raised in the meeting on 9th November, 2011 which led to the deferring of her promotion as such the issue was live before even the criminal charges were initiated. Further that the letter of 14th May, 2010 which alleged that a section of lawyers of Nyahururu distant themselves from the proceedings were written 2 years before the issues were raised while the letter of the Children Officers and LSK, North Rift Branch dated 7th July, 2014 and 8th July, 2014 respectively were all drafted after a decision with regard to the Petitioner conduct was made.
35.On whether the Respondent violated Paragraphs 26 and 27 of the 3rd Schedule of the Judicial Service Act, on allegedly failing to carry out investigation before making a decision to retire the Petitioner, The affiant avers that the Chief justice in compliance with paragraph 27 retired the Petitioner after considering her response upon being notified of the decision the Respondent intends to take.
36.It is stated that the Petitioner was subjected to due procedure leading to retirement under public interest provided for under the Judicial Service Act and therefore the final termination was justified. Additionally, that the chief justice is not required under regulation 27 of the Act to carry out investigations but to consider the complaint filed and form an opinion on whether the officer should be retired under the said section.
37.It is averred that the independence of the judiciary was not interfered with in any way because the role of the Chief justice and that of the Respondent with regard to disciplining the Respondent’s employees is spelt out in the Judicial Service Act in that the chief justice is required to consider the complaint filed and form an opinion on whether the complaint warrant retirement under public interest then make a report and table before the 1st Respondent who act upon the report and decide whether to retire the employee or not.
38.With regard to violation of Articles 157 and 259(1) of the Constitution, it is stated that the Petitioner has not laid down the basis upon which the Respondent encroached on the mandate of the Director of Public Prosecution in conducting the disciplinary process against her.
39.The affiant reiterated that the Petitioner was not retired on the basis of being charged in a criminal case rather that she was retired after numerous complaints were raised from advocates practicing before her Court and the Laws Society of Kenya complaint. In any case that the disciplinary process started way before the Petitioner was charged with the criminal offense.
40.Contrary to allegation that the Respondent contravened the decree of the Supreme Court under Article 163(7), the affiant avers that the Petitioner was notified of the charges against her which she duly responded with great detail and then granted an opportunity to make representation, therefore the allegation raised therein is without basis. The affiant maintained that all information which the Respondent used to retire the Petitioner were availed to her.
41.It is the Respondent’s case that third Schedule of the Judicial Service Act provide for various disciplinary process and the one used on her was suitable as per the circumstances of her case which issue was different from those Justice Chitembwe and retired Justice GBM Kariuki were facing.
42.The affiant stated further that the Petitioner has come to Court with unclean hands, in that she was retired on 10th July, 2013 but continued to unlawfully receive salary till 31st October, 2015 unjustly enriching herself to a tune of Kshs 5,062, 869.70
43.The Respondent also avers that the petition herein has been filed late in time because the Petitioner was retired on 10th July, 2013 and only raised till petition in December, 2021 without an explanation as to the delay.
44.On 4th October, 2022 pursuant to the application of Kipkogei advocate to cross examine the Petitioner, the Petitioner testified that she was employed as a resident magistrate on 2.7.2004 and rose through the rank till she became the Principal magistrate however her promotion was differed. She testified that she was thus retired as a Senior Resident Magistrate. It was her testimony that she was served with the retirement letter in December,2013 and met the Chief Registrar and the Respondent’s registrar who advised her to lodge an appeal after the criminal case that had been lodged against her is finalized. She admitted that she was charged in the criminal case in 2014 after she had been retired. She also admitted that the notice of intention to retire her was served on her which she dully responded. She also admitted to receiving salary till October, 2015 but that she was paid awaiting the appeal that she had lodged.
45.On further cross examination, she testified that in Criminal Case No. 265 of 2012, R versus Johnson Gachigi, the accused had been charged with offense of forgery, in which case she was the complaint and upon being convicted he was released under unknown circumstances and the file was placed before her which she ordered her re-arrest though she was the complaint in the trial. She stated further that the issue was handled before the High Court which discovered that the release Order was either a forgery or a mistake. She admitted that the signature was hers but that she was duped by an officer of the Court.
46.She testified further that there was no valid reason given by the Respondent to retire her. Also that there is no report tabled before this Court to give reason that confirmed the decision of the Respondent to retire her. She testified that in the disciplinary hearing she never met her accuser and thus could not cross examine them.
47.The Petitioner filed her submission on 14th October, 2022 and a further submission on 1st November, 2022. The Respondent on the other hand filed its submissions on 1st November, 2022.
48.The Petitioner identified four issues for determination; whether this Court has jurisdiction to determine this petition, whether the Respondent’s actions complied with policies in the Human Resource Procedure Manual, whether the Respondent’s action contravened articles of the constitution and violated the Petitioner’s constitutional rights and whether the remedies sought should issue.
49.On the first issue, it was submitted that the Petitioner has a right under Article 22 of the Constitution to institute this suit claiming her rights have been violated and under Article 258 claiming the constitution was contravened. This Court on the other hand is empowered under Articles 162 and 165 of the Constitution to determine whether the Petitioner’s rights and freedoms have been infringed. On that basis that remedies under Article 23 relating have no statutory bar unless prescribed by the constitution. In this, she cited the case of Kiluwa Limited and another V Commissioner of Lands and 3 others  eklr.
50.On the second issue, it was submitted that the Chief justice and the Respondent in violation of its Human Resource manual under Paragraph D. 7.3, Articles 252 and 172 (1)(c) of the Constitution and Rule 26 of the 3rd Schedule of the Judicial Service Act, failed to conduct any investigation before carrying out the disciplinary process as a result relied on hearsay in making its decision to retire the Petitioner. It was argued that the Respondent Violated Rule 18 of the 3rd Schedule of the Judicial Service Act, when it dealt with the issue relating to forgery case which was already before the High Court.
51.It was submitted that the procedure under Rule 27 of the 3rd Schedule of the Judicial Service Act, requires the Chief justice to first scrutinize the complaint raised and form an opinion then table a report before the Respondent for disciplinary hearing to commence. But in this case, the Chief justice did not table such report as such raising doubt as to whether such a report was made and whether the right procedure was followed before the disciplinary proceeding commenced that led to the retirement of the Petitioner. It was further argued that, if indeed such a report existed the Petitioner was not furnished with it in total violation of rule 23 of the 3rd Schedule to Judicial Service Act as read with Articles 232(1) (e) &(f), Article 47(2) and 35 of the Constitution. To support this argument, the Petitioner cited the case of Simon Rotich Ruto V Judicial Service Commission and another [ 2019] eklr.
52.The Petitioner also cited the case of Shollei v Judicial Service Commission & another (Petition 34 of 2014)  KESC 5 (KLR) (17 February 2022) (Judgment) where the Supreme Court gave guiding principles on disciplinary proceedings before Judicial Service Commission that; -a.The JSC shall comply with the procedure set out in article 47 of the Constitution and the Fair Administrative Actions Act.b.JSC shall always give an employee reasonable time to defend himself or herself.c.An employee shall be informed the basis of complaint(s) or who his or her accusers to enable the employee defend themselves.d.JSC shall furnish an employee with details of allegations against him or her.e.JSC must always be clear from the start whether the administrative action against an employee is of an investigatory nature or of a disciplinary nature. Should an investigatory process turn into a disciplinary one, an employee must be accorded fresh notice to prepare his/her defence.f.An employee should be accorded a public hearing if he/she desires to have one. A decision to decline such a request must be accompanied with reasons which shall be given to the employee.g.An employee shall be given detailed reasons for any administrative action/decision by JSC.h.An employee should access and receive any relevant documents relating to his/her matter. Any decision to the contrary must be accompanied by a written reason.i.An employee shall be accorded opportunity to attend proceedings, in person or in the company of an expert of his/her choice.j.An employee undergoing disciplinary proceedings shall be given an opportunity to call witnesses, be heard; cross examine witnesses; and request for an adjournment of the proceedings upon providing good reasons and where necessary to ensure a fair hearing.”
53.Similarly, the Petitioner urged this Court to be guided by the above guideline in making a decision in this case.
54.On the third issue, whether the Respondent violated the Petitioner rights under the Constitution, it was argued that the violation of the rules of procedure under the Human Resource manual and the Judicial Service Act by extension violated Articles 172 (1)(c) , 252, 10, 47 and 236 of the Constitution underscoring procedural fairness, rule of law and due process.
55.It was submitted that the disciplinary process was not properly conducted because she was not granted an opportunity to face her accuser and cross examine them, which action was in violation of the right to fair hearing under Article 50 and Article 47 of the Constitution. Furthermore, that no explanation was given for the failure by the Respondent to conduct the said disciplinary hearing in an open manner. In this she cited the case of Onyango v Judicial Service Commission & another (Cause E52 of 2021)  KEELRC 1248 (KLR) (12 July 2022) (Judgment).
56.It was argued that the Petitioner was not afforded equal treatment under the law contrary to Article 27 of the Constitution, because other officers who were facing criminal charges were returned back to employment after the hearing and determination of their criminal case. It was argued further that the Petitioner had legitimate expectation anchored under Article 47 of the Constitution to be treated in similar manner.
57.It is the Petitioner’s submission that the Respondent violated the Constitution in its action and cannot be allowed to take refuge under public interest claim. In this she cited the case of Migori County Government and Another V Migori County Transport Sacco  eklr.
58.On the remedies sought, the Petitioner sought to be reinstated back to her position and in doing so urged this Court to consider her long service in employment, the prospects of securing similar position, her age and rely on the guideline in the case of Independent Electoral and Boundaries Commission and another V Stephen Mutinda Mule and 3 others  eklr.
59.The Respondent submitted from the onset that this matter is a contractual matter that is governed by the Employment law and the only reason that the Petitioner opted to file it as a petition is to evade limitation of action. In this they cited the case of Zachary Nyambura Manani V Teachers Service Commission  eklr.
60.The Respondent then identified Four issues for determination; Whether this Honorable Court has Jurisdiction to determine the instant Petition; Whether retirement of the Petitioner in public interest was unlawful, unfair and illegal; Whether the Petitioner was discriminated against by the Respondent contrary to Article 27 of the Constitution of Kenya, 2010 and Whether the Petitioner should be awarded the reliefs sought.
61.On the first issue, it was submitted that the petition herein was filed late in time as such is statute barred and this Court does not have jurisdiction to hear and determine any issue raised therein. They cited the locus classicus case of The Owners of the Motor Vessel “Lilian S” Vs Caltex Oil (Kenya) Ltd (1989) KLR. Where Nyarangi J stated as follows:
62.On that basis, it was argued that whereas the jurisdiction of this Honorable Court to determine matters dealing with violation of employees’ rights is guaranteed under Article 162 as read together with Article 165 of the Constitution of Kenya, 2010, the same is limited by the mandatory provisions of Section 90 of the Employment Act. It was argued that section 90 of the Employment Act is couched in mandatory terms and in effect, proscribes instituting any suit (including the instant Petition as contemplated under Rule 7 of the Employment and Labour Relations Court (Procedure) Rules, 2016) outside the statutory limitation period of three (3) years. To support its argument, the Respondent cited several case including the case of Josephat Ndirangu -vs- Henkel Chemicals (EA) Limited (2013) eKLR where Justice Radido held: -
63.They also cited the case of Joseph Muturi Mbariah & Another -vs Council of JKUAT (2013) eKLR where Lady Justice Mbaru held that:-
64.From the foregoing, The Respondent invited this Honorable Court to find that the instant Petition is an abuse of Court’s process to the extent that it is a normal contractual employment claim disguised as a Petition to defeat the statutory time limitation established under Section 90 of the Employment Act, 2007 and as such, this Honorable Court lacks Jurisdiction to grant Orders sought.
65.On the second issues, it was submitted that under the Third Schedule of the Judicial Service Act, there is an elaborate in-built mechanism relating to the appointment, discipline and removal of judicial officers and staff. Particularly, regulations 26 and 27 Part IV of the Third Schedule to the Judicial Service Act. It was submitted that the Petitioner has misapprehended the dichotomy between the procedures underscored under Regulations 25 and 26 as distinct from the procedure laid out for retirement of a judicial officer on grounds of public interest under Regulation 27, Part IV of the Third Schedule to the Judicial Service Act. It was argued that even where disciplinary proceedings are initiated under regulation 25 or 26, the Regulations 25(11) and 26(8) allow the retirement of a Judicial Officer in the public interest under Regulation 27. To support this argument, they cited the Court of Appeal decision in Judicial Service Commission v Gilbert Mwangi Njuguna & another  eKLR at para 39 wherein the Court noted thus:
66.Accordingly, that the Respondent conducted the disciplinary proceedings in accordance with Rule 27 as Chief Justice vide a letter dated 20th December 2012 notified the Petitioner and specified the reasons of which her retirement in public interest was contemplated and referred to the Show Cause letter dated 26th April 2012, which the Petitioner responded in detail to the complaints against her vide a letter dated 14th January 2013 and the response considered by the Chief Justice. As such, it is the Respondent’s submissions that the Respondent acted within the ambit of the law and accorded the Petitioner a fair hearing.
67.On the violation of the right to access information and to be furnished with all reports, minutes and all documents the Respondent would be relying on. The Respondent submitted that the proviso under Regulation 23 dispels the notion as it reads:
68.Contrary to allegation that the termination was conducted unfairly, the Respondent submitted that due procedure was followed because the Petitioner was served with a letter to show cause dated 26th April 2012 setting out the complaints lodged against her, requiring the Petitioner to respond to charges levelled against her within twenty (21) days, the Petitioner responded to the Show Cause letter vide a letter dated 7th May, 2012 and invited to appear before the Judicial Service Commission Human Resource Committee on 29th November 2012 whereupon after consideration of the Petitioner’s response and consideration, the Committee recommended that proceedings for the Petitioner’s retirement on grounds of public interest be initiated in accordance with Section 27(1) Part IV, Third Schedule of the Judicial Service Act, 2011; Accordingly, the Chief Justice having reviewed the recommendation by the Committee and the complaints against the Petitioner formed the opinion that it was desirable to retire the Petitioner on Grounds of public interest and the said decision was communicated to the Petitioner vide a letter dated 26th April 2012. Additionally that the Petitioner responded to the Notice of Retirement in public interest through her letter dated 14th January 2013 and upon consideration the Chief Justice was satisfied that the Petitioner should be retired in the Public interest and placed before the Respondent the report on the Petitioner’s case, Petitioner’s Response dated 14th January 2013 together with his own recommendations and On 10th July, 2013 and after considering such documents, the Respondent resolved to retire the Petitioner on Grounds of public interest and the same was communicated to the Respondent vide a letter dated 23rd July, 2013.
69.To support the argument above, the Respondent relied on the case R -v- Immigration Appeal Tribunal Ex-Parte Jones  I WLR 477, 481 where it was held that: -
70.Similarly, the Court of Appeal in Judicial Service Commission v Gilbert Mwangi Njuguna & another  eKLR the Court held thus:
71.On the third issue, it was submitted that the Petitioner was accorded due procedure and equal protection of the law as guaranteed under Article 27 of the Constitution of Kenya, and relied on the case of Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties)  eKLR where the Court was of the opinion that;-
72.On the reliefs sought, it was submitted that to the extent that the Petitioner’s retirement was in full compliance with the established procedure for retirement as contemplated under the Judicial Service Act, this Honorable Court should decline to grant prayer (a) to (d) as the Petitioner has failed to provide any evidence to the effect that the Respondent’s actions were unlawful or unprocedural.
73.With regard to the prayers for reinstatement, the Respondent submitted that it is trite law that Courts should only resort to this remedy in exceptional circumstances because an order of reinstatement is an order of specific performance, which Courts must refrain from granting except in exceptional circumstances.i In this, they cited the case of Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike eKLR, where Maraga J (as he then was), echoed this position thus:
74.Accordingly, the Respondent argued that the order of reinstatement should not be considered because;the Petitioner was lawfully retired on ground of public interest as highlighted above; That she has not proved any exceptional circumstance based on the grounds prescribed under Section 49(4)(a)-(m) of the Employment Act and that reinstatement remedy is not practicable due to the Respondent’s conduct that led to her termination.
75.On the remedy for payment of damages, the Respondent submitted that the Petitioner is undeserving of the remedy of damages sought since the Petitioner’s retirement was in accordance with procedure set in law as highlighted above. On this they relied on the Court of Appeal’s finding in Peter M. Kariuki vs. Attorney General  eKLR at para 45 wherein the Court observed that:
76.Furthermore, that the Petitioner admitted during cross-examination, receiving public funds in the form of monthly salary from July 2013 to 31st October 2015 despite the fact that she did not report for duty as she had been retired in grounds of public interest. This resulted to an overpayment of Kenya shillings Five Million, Sixty-Two thousand, Eight Hundred and Sixty and Seventy Cents (Kshs. 5,062,869.70).
77.On costs, it was submitted that costs follow event and in this case the Respondent urged this Court to dismiss the Petition and award it costs.
78.I have considered the evidence and submissions of the parties herein. The issues for this Court’s determination are as follows;1.Whether this Petition is time barred and therefore this Court lacks jurisdiction to hear and determine it.2.Whether the retirement of the Petitioner in public interest was unlawful, unfair and illegal.3.Whether the Petitioner’s constitutional rights were infringed upon by the Respondents.4.Whether the claimant can be granted orders sought.ISSUE NO. 1: Whether this Court has jurisdiction to handle this matter.
79.The Respondents submitted that this Court lacks jurisdiction to handle this matter as it is time barred.
80.In respect of this issue, the Respondents also submitted that this is a purely employment matter and the Petitioners decided to file a petition to evade the issue of limitation.
81.Indeed section 90 of the Employment Act provides as follows;
82.The claimant herein however filed a constitutional petition as opposed to a pure employment case.
83.The claimant is free to file a constitutional petition as she wishes because the Employment Act does not limit anybody from filing a petition alleging contravention of their constitutional rights under Article 162(2) of the constitution and other rights in the constitution.
84.On the issue of limitation of filing a petition such as filed by the Petitioner there is no time limit for filing a constitution petition unless it is inordinately unreasonable.
85.Indeed the Limitation of Action Act does not apply to a violation of rights and freedom guaranteed in the constitution as was held by the Court of Appeal in Chief Land Registrar & 4 others Vs Nathein Tirop Koech and 4 others (2018) eKLR.
86.In Njuguna Gathuru Vs Attorney General (2016) Eklr, Lenaola J. as he then was and as considered by this Court in Timothy Nchoe Sironka Vs the Judicial Service Commission stated as follows;-
Issue No. 2
87.On this issue, the Petitioner submitted that her retirement in the public interest is unfair and illegal. In this regard, I will consider the events leading to the Petitioner’s retirement.
88.Trouble for the Petitioner began in 2011 when she had been promoted to the position of Principal Magistrate vide a letter dated 22/11/2011. The promotion was deferred on the grounds that members of LSK Nyahururu Chapter had written to JSC complaining about the Petitioner’s conduct in Court.
89.It was also alleged that the Petitioner had on 21st December 2010 kept advocates waiting from 9.00am to 5.00pm and after the advocates and their clients left, she recorded in the Court file that parties and their advocates were absent.
90.Other complaints were levelled in the said letter. The Petitioner was asked to respond to these allegations within 21 days.
91.Vide a letter dated 6th December, 2011 the Petitioner responded denying the said allegations.
92.After the response to the allegation the Petitioner was served with a letter dated 22nd February, 2012 deferring her promotion. The letter signed by the former secretary of the JSC Boss Shollei indicated that the JSC had at its meeting held on 7th February, 2012 deliberated on her case of promotion but deferred it pending further investigations on the allegations lodged against her by the LSK Nyahururu Chapter.
93.On 26th April 2012, the then CJ/President of the Supreme Court of Kenya formally wrote to the Petitioner in relation to these complaints indicating that it had been contemplated to take severe disciplinary action against her for gross misconduct but before that could be done and in accordance with Regulation 26 of the Third Schedule of the JS Act 2011, she was being called upon to respond to the allegations levelled against her.
94.She was asked to make her response within 21 days from the date thereof.
95.The Petitioner made her response vide a letter dated 7th May, 2012 reiterating her earlier responses denying any wrong doing on her part.
96.Vide a letter dated 25th June 2012, the Petitioner was issued with summons to appear before the JSC Human Resource Management Committee on Friday 13th July 2012 at 2.30pm for the hearing of her discipline case. She was asked to report to the Supreme Court Building Boardroom No. 74 on the second floor and carry any documents to be used during the hearing.
97.She was also asked to proceed on her annual leave with immediate effect pending the determination of the discipline case.
98.It appears that the Petitioner finally appeared before the JSC HR Management Committee on 29th November 2012 for the disciplinary hearing and vide a letter dated 20th December 2012, the Hon. Chief Justice wrote to the Petitioner serving her with a notice of retirement in the public interest. The letter stated as follows;
99.As per the Respondent’s replying affidavit the Petitioner responded to the notice of retirement in the public interest through her letter of 14th January 2013.
100.The Chief Justice considered the Petitioners response and was satisfied that the Petitioner should be required to retire.
101.The Chief Justice subsequently placed before the Respondent the report on Petitioner’s case and the Petitioner’s response dated 14th January, 2013 with his recommendation.
102.In the Respondent’s meeting of 10th July 2013, the Respondents resolved to retire the Petitioner in the public interest.
103.A decision to this effect was communicated to the Petitioner vide a letter dated 23rd July, 2013. The Petitioner was subsequently retired in the public interest with effect from 10th July 2013 in accordance with Section 27 Part IV Third schedule of the Judicial Service Act 2011.
104.The Petitioner appealed this retirement vide her letter dated 7th August 2013 but vide a letter dated 17th January 2014 her appeal was dismissed but she was informed that right to a second Appeal/Review provided that such appeal was submitted within one year from the date of the said letter being 17th January, 2014.
105.The Petitioner made her 2nd appeal vide a letter dated 18th December, 2014 indicating that she had been condemned unheard.
106.This second appeal was again dismissed and a decision to this effect communicated on 27th January, 2017.
107.She again sought for review of this decision vide her letter of 28th March 2018 and the same was still disallowed vide her letter of 13th March 2019.
108.Having set out the chronology of events as above, I will now turn to the procedure required in determining a disciplinary matter against a judicial officer.
109.The Third Schedule of the Judicial Service Act 2011 provides provisions relating to the appointment, discipline and removal of judicial officers and staff.
110.Rule 19 of the Third Schedule provides as follows;
111.Rule 25 on the other hand provides for proceedings for dismissal and states as follows;
112.The Petitioner was not dismissed but was retired in the public interest. Retirement in the public interest comes under Rule 19 which provides for sanction after disciplinary proceedings. It therefore follows that retirement in the public interest is a sanction envisaged after disciplinary proceedings.
113.The starting point of any disciplinary process is in form of an inquiry and where the Chief Justice considers after such inquiry that disciplinary proceedings against an officer on grounds of misconduct which if proved in the Chief Justice’s opinion justify dismissal, he may frame a charge or charges against the officer and shall then forward to the officer who would be invited to respond in writing.
114.The Petitioner has submitted that no investigations were conducted in respect of complaints against her.
115.Indeed before the Chief Justice made an opinion to institute disciplinary proceedings against the Petitioner no investigation was carried out and if indeed it was carried out, no independent investigation report was produced before Court.
116.Indeed there is no demonstration by the Respondent that an investigation report was submitted to the office of the Chief Justice upon which he opined that the Petitioner should be subjected to a disciplinary process.
117.It is also true that after the Petitioner responded to the initial complaint against her, no one ever interviewed her to establish the veracity of the allegation contained in the complaint letters against her.
118.Under Rule 25(3) of Third Schedule cited above, there is no evidence of any committee being mandated to investigate the allegations levelled against the Petitioner.
119.Under Rule (7) above the Chief Justice is also expected to bring the results of any such investigation before the commission and the commission shall forthwith decide on the punishment if any (other than dismissal) which should be inflicted on the officer.
120.The Respondents have submitted that they with prudence and within the provision of the law and Judiciary HR Manual when handling the petitioner’s case.
121.Rule 27 provides for requirement for retirement on grounds of public interest. This rule provides as follows;-
122.Again under this rule, the Chief Justice is required to consider every report in his possession.
123.Rule (2) above envisages that an officer should be given an opportunity to show cause why he should not be retired in the public interest.
124.The Hon. Chief Justice indeed wrote to the Petitioner to show cause why she should not be retired in the public interest vide letter of 20th December, 2012.
125.After this notice and response thereto, the Petitioner was retired in the public interest vide a letter dated 23rd July, 2013 indicating that she had been retired with effect from 10th July, 2013.
126.In between this notice of retirement to the time of retirement there is no indication that the Petitioner appeared before the Respondent for any hearing on the retirement expected.
127.Rule 27 (2) of the Third Schedule indicates that the Chief Justice is expected to lay before the commission a report on the case, the officer reply and their own recommendation and the commission shall decide whether the officer should be required to retire in the public interest.
128.The mandate expected of the Judicial Service Commission in this regard if a report was laid before it and which has not been demonstrated before this Court was to summon the Petitioner before it, lay evidence/call witnesses and proceed to give the Petitioner an opportunity to defend herself.
129.This was never done. The rules of natural justice envisage that a man should not be condemned unheard.
130.In Evans Odhiambo Kidero & 4 Others Vs Ferdinant Ndungu Waititu & 4 Others Petition No. 18 of 2014, paragraph 299, 300 & 311 the SCK held that no materials or letters can be relied upon to establish contented facts which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination and challenge against whom they are sought to be used.
131.Indeed it is like the Judicial Service Commission in sanctioning of a retirement of the Petitioner proceeded to rely on documents not tested in evidence.
132.It is like relying on pleadings without them being tested in evidence as was held in CMC Aviation Ltd Vs Cruisalt Ltd (No. 1) (1978) IKLR 103 (1976 – 80) IKLR 835. Madan J as he then was he stated as follows;
133.The Judicial Service Commission being a quasi – Judicial body and sitting as a disciplinary body cannot purport to proceed against a judicial officer and render a decision without according the officer a hearing and while relying on “reports” not tested in evidence.
134.This position was elaborated again by the SCK in Shollei Vs JSC & Another (Pet 34 of 2014) (2022) KESC 5 (KLR) cited in parts of this Judgment where the SCK elaborated on the mode of any disciplinary proceedings before the JSC.
135.The need for the JSC to accord a proper hearing to any judicial officer/staff was underscored.
136.It is not clear whether from the start, the petitioner was going through an investigation or a disciplinary process.
137.She was never accorded a public hearing by the Respondent. She even appealed the Respondent’s decision seeking to be given an opportunity to be heard and this request was also denied.
138.It is therefore my finding that though the JSC finally made a determination to retire the Petitioner in the public interest, this decision was made arbitrarily in an unfair manner and without consideration of rules of natural justice and therefore their decision was unlawful, unfair and illegal.
Issue No. 3
139.As concerns breach of the Petitioner’s constitutional rights, this Court has already determined that the Respondent acted arbitrarily and unfairly in retiring the Petitioner in the public interest without according her a hearing. The Respondents breached a myriad of the Petitioner’s constitutional rights including breach of Article 47 of the constitution which states as follows;
140.The Petitioner’s right to fair hearing under Article 50(1) of the constitution was breached which opines as follows;-
141.Article 41 of the constitution on the other hand states as follows;-
142.The Petitioner is indeed entitled to fair labour practices. In determining her labour rights without a fair opportunity to defend herself the Petitioner’s labour rights were flouted.
143.It is my finding that indeed the Respondents breached the Petitioner’s rights under the constitution and declare that so.
Issue No. 4
144.The Petitioner sought various orders in this petition chief being, reinstatement.
145.It is however noted that the Petitioner was retired in the public interest by the Respondents in 2013. This is a period going back to about 9 years.
146.Section 12 of the ELRC Act envisages that reinstatement is one of the remedies the ELRC can grant to an employee however under Section12 (3) (vii) the reinstatement can only be offered within three years of the dismissal.
147.In case of the Petitioner, since the retirement goes beyond the three year limit, an order of reinstatement is not an option.
148.I therefore decline to grant the order of reinstatement as prayed.
149.The Petitioner also prayed to be awarded exemplary and aggravated damages.
150.I note that the Petitioner was a career Judicial officer whose career was abruptly cut short by the Respondent’s unfair and arbitrary decision.
151.I also note that the Petitioner at her age having served in the Judiciary as a magistrate since 2014, is now of an age where getting fresh appointments may be a tall order.
152.In the circumstances of the case, I grant the Petitioner damages equivalent to 5million for the unfair, unlawful, arbitrary retirement in the public service.
153.The Respondents will bear the costs of this petition.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 20TH DAY OF DECEMBER, 2022.HON. LADY JUSTICE HELLEN WASILWAJUDGEIn the presence of:Okemwa for Petitioner – presentOchola holding brief for Kipkogei for Respondent – presentCourt Assistant - Fred