[2013] KEIC 1 (KLR)

Gladys Boss Shollei v Judicial Service Commission (Petition 39 of 2013) [2013] KEIC 1 (KLR) (Employment and Labour) (22 November 2013) (Ruling)

Gladys Boss Shollei v Judicial Service Commission [2013] eKLR

Neutral citation: [2013] KEIC 1 (KLR)

Republic of Kenya

In the Industrial Court at Nairobi

Employment and Labour

Petition 39 of 2013

MN Nduma, J

November 22, 2013

Between

Gladys Boss Shollei

Petitioner

and

Judicial Service Commission

Respondent

Ruling

Donald Kipkorir assisted by Ekuru Aukot for the Petitioner/Applicant.Mr. Paul K. Muite assisted by Issa Mansor for the Respondent. 1. The Applicant, was at all material times employed as the Chief Registrar of the Judiciary pursuant to Article 161 (2) (c) of the Constitution of Kenya, 2010 (hereinafter, “The Constitution”).

2. The petition dated 31st October, 2013, was filed on 1st November, 2013 seeking various reliefs to wit;“The Petitioner hereby prays pursuant to Article 20 of the Constitution as against the Respondent Orders;-a.That order of certiorari to issue to quash the letter of removal dated 18. 10. 13. b.That order of certiorari to issue to quash the proceedings of 18. 10. 13. c.That an order of mandamus to issue compelling the Respondent to comply with the applicable law.d.That prohibition do issue against the Respondent from in any way proceeding against the Petitioner other than as by law provided.e.That Declaratory orders to issue that the Respondent violated the Petitioner’s rights as set out.f.That Declaratory orders to issue that the allegations against the Petitioner and the reasons given for her dismissal do not exist in law, and thereby void.g.That Declaratory orders do issue that the Judicial Service Act, 2011 is void to the extent of its inconsistency with the Constitution.h.That an order of compensation do issue for violation of the Petitioner’s rights and an inquiry to quantum be gone into.j.That such further orders or relief do issue pursuant to Article 23 (3) of the Constitution.I.That costs be provided for the Petitioner.”

3. Simultaneously with the petition was filed an Interlocutory Applicationon a certificate of urgency.The Notice of motion dated 31st October, 2013 was certified urgent by Hon. Mr. Justice Majanja on 1st November, 2013 and on 4th November, 2013, by consent of the parties, the matter was transferred to this court by Hon. Justice Mumbi Ngugi being a matter relating to employment and labour relations in terms of Article 162 (2) of the Constitution as read with Section 12 of the Industrial Court Act, 2011.

4. On 5th November, 2013, the matter came before me for directions and the court directed the Respondent to respond to the urgent application and the matter was set for hearing on 15th November, 2013.

5. At the hearing, Mr. Donald Kipkorir for the Applicant submitted that he was confining himself to prayers 3 and 4 of the Notice of motion being;That pending the hearing and determination of the petition;(3)a conservatory order do issue reinstating the petitioner to office ante (8. 10. 13)(4)The office of the Chief Registrar of the Judiciary should not be occupied by any other person other than the Petitioner.Mr. Muite for the Respondent confirmed this to be the subject of consideration at the interlocutory hearing precisely because the matter was not heard ex parte in the first instance and therefore prayers 3 and 4 as previously couched, anticipating inter parties hearing had been overtaken by events.

6. The application is supported by the affidavit of the Applicant dated 31st October, 2013 and on the following grounds;a.That the proceedings of the Respondent as against the Petitioner have no substratum in law or in fact.b.That the Respondent acted without jurisdiction in the way it did.c.That the Respondent abused its authority in the place it had.d.That in showing open contempt of Constitutional provisions, the Respondent ousted any claim of right it had to proceed against the Petitioner.e.The Respondent exercised its referral and/or repository power in bad faith, and the process tainted with fraud and improper purpose.f.The Respondent acted unfairly and capriciously against the Petitioner, and took extraneous matters into consideration.g.The Respondent was manifestly unreasonable.h.That error of law is apparent ex facie.i.The Respondent was in blatant breach of the rules of natural justice of nemo judex in causa sua, and audi alterram partem.j.The Respondent failed to act judicially or fairly.k.The Respondent’s proceedings against the Petitioner are void.

- Applicant’s case. 7. That on 18th October, 2013, the Respondent purportedly removed her as the Chief Registrar of the Judiciary (hereinafter “CRJ”) without any reasons by a letter of the same date attached to the petition.The letter read as follows;“Re: Removal From Office As The Chief Registrar Of The JudiciaryFollowing the disciplinary proceedings initiated against you by the Judicial Service Commission as per the allegations set out in the Commission’s letter dated 10th September, 2013, and having considered your written oral responses, the Commission has deliberated on the same and reached a decision.The Commission is satisfied that the requirements set out under section 12 (1) (b) (c) (d) (f) and (g) of the Judicial Service Act 2011, have been met.Accordingly, the Commission in its sitting of 18th October, 2013 in exercise of its mandate as set out in Article 173 of the Constitution has Unaninimously resolved to terminate your appointment and remove you from office as the Chief Registrar of the Judiciary with effect from 18th October, 2013. Hon. Dr. Willy Mutunga, D.jur, SC, EGHChairmanJudicial Service Commission.”

8. It is the Applicant’s case that though this letter did not contain the reasons for termination, the Respondent set out the reasons for her removal in a media release at its website, as follows;(i)Incompetence;(ii)Misbehaviour;(iii)Violation of the prescribed Code of Conduct for judicial officers;(iv)Violation of Chapter 6 and Article 232 of the Constitution; and(v)Insubordination.The press release is attached to the affidavit. The Applicant has outlined the journey to her dismissal as follows;

9. That on 20th August, 2013, she was sent on a compulsory leave and the public was invited to lodge complaints against her. This followed a meeting of the Judicial Service Commission (hereinafter “JSC”) held at Mombasa on 17th August, 2013 in which the Petitioner, the Hon. the Chief Justice, the Hon. the Attorney General and Hon. Justice Lenaola were absent.That there was no agenda for the meeting to discuss the conduct of the Applicant at that meeting but it was none the less resolved to remove the Applicant from her office and the decision was ratified by a majority of five (5) members out of the nine (9) at a meeting subsequently held at Nairobi on the subject matter on 18th August, 2013. At the press conference following the meeting and on a Saturday morning, it was announced that the Petitioner would be suspended from office.

10. By a letter dated 10th September, 2013, JSC through the Hon. Chief Justice sent the Applicant a raft of allegations found on page 17 to 34 of the petition under five heads as follows;1. Financial mismanagement;2. Mismanagement in Human Resource;3. Impropriety in procurement;4. Insubordination; and5. Misbehavior.A perusal of the document shows that each of the allegations numbering 1 to 23 contain particulars of misconduct by the Applicant.It was however alleged by the Applicant that the allegations do not constitute charges known in our law and that the same lacked specifity and particulars in support thereby embarrassing the Applicant.The Applicant nevertheless responded to the said allegations vide her interim report on page 35 to 37 of the petition.The Respondent thereafter issued a media release that the disciplinary hearing against the Applicant would be held on 16th October, 2013. A perusal of the press release on page 98 of the petition indicates that the Respondent had received the response to the specific allegations by the Applicant and intended to hear her out at an oral hearing to commence at 10. 00 a.m. on 16th October, 2013.

11. It is the Applicant’s submission that the proceedings against her were unprocedural, unlawful and void ab initio for the following reasons;The Respondent lacked jurisdiction to proceed against her in thati.The Office of the CRJ is a constitutional one and is established under Article 161 which creates the office of the Chief Justice and the Deputy Chief Justice. As such, the office is only one of the three judicial offices established under the Constitutionii.That the office was not one of ordinary Registrar to be subjected to disciplinary action by JSC under section 12 of the Judicial Service Commission Actiii.That being the Chief Accounting and Administration office of the Judiciary, the office comes with Rights and obligations and Responsibilities and in that regard the office is only accountable to the National Assembly on financial management matters in terms of Article 226 (2) of the Constitution which reads; “The accounting officer of a national public entity is accountable to the National Assembly for its financial management and the accounting officer ...”

12. Furthermore, in terms of Clause 3 “subject to clause (4), the accounts of all governments and state organs shall be audited by the Auditor-General.”That on matters of procurement Article 227 of the Constitution provides for an Act of Parliament to prescribe a framework within which policies relating to procurement and asset disposal shall be governed and therefore JSC had no business questioning her on these matters.In this regard, the Public Procurement and Disposal Authority has oversight on procurement matters and not the JSC.The court was also referred to the Public Finance and Management Act, 2012. Under Sections 66 to 74, is set out powers and responsibilities of Accounting Officer and reporting line including “The Judiciary, Parliament and Independent offices.”That under Section 74 in particular the Accounting Officers, like the Applicant are subject to the Constitution and the Public Officers Ethics Act as read with the Ethics and Anti-Corruption Act, 2011. It was the Applicant’s submission that the JSC could only deal with CRJ upon referral from any of the above cited bodies and could not act suo moto as it did with respect to this case. JSC was said to be crying more than the bereaved and by so doing acted ultra vires the statute and without jurisdiction therefore.

13. The Applicant submitted that she did not get a fair and impartial hearing contrary to Article 47 and 50 of the Constitution in that she was, inspite of protestation, not given adequate time to prepare her defence; She was not allowed to call witnesses to rebut the allegations; was not adequately informed of the case against her; her defence was not in any event impartially evaluated and that she had protested that several of the Commissioners who sat to suspend her at Mombasa, and participated in the so called disciplinary action were biased against her and had in the past demonstrated such bias in the course of her duties.These biased Commissioners were named as Hon. Justice Warsame; Advocate Ahmed Nasir Abdullahi; Professor Christine Mango; Hon. Emily Ominde and Advocate Florence Mwangangi.

14. That further evidence of bias against her is demonstrated by a raft of emails emanating from or to the Chief Justice marked “GBS13” on page 1178 – 1316 which demonstrate the existence of a “war council” and the “war strategy” to remove the Applicant from her office by hook or crook.It was submitted by counsel for the Applicant that the members of the war council who included Hon. Justice Joel Ngugi; Mr. Denis Kabaara, Mr. Duncan Okello and Mr. Makokha Kwamuchetsi conceived and executed the war strategy to the letter. That their correspondence shows the real reason for the removal of the Chief Registrar from her office and that the raft of allegations set out against her and the purported disciplinary hearing was a farce and or facade aimed at covering the real reason for her removal.

15. Counsel submitted that out of the Group of Generals in the war council, only the Hon. the Chief Justice and Hon. Justice Ngugi were employees of the Judiciary.The council had agreed that the Chief Justice had a short time before he left his office and he must leave a legacy.That the Executive represented by Gladys Shollei was on his way to leave this lasting legacy.That the council advised him to take back the Judiciary from the Executive and they designated themselves as Generals.The council agreed that Gladys must be removed and the way to do that was not to say she stood in the way of transformation as that would not sell, but she should be accused of being in-charge of a criminal enterprise.

16. That a thirty (30) point plan was developed and she was named ‘Darth Vader” a leading character in star wars movie, about clash of the ‘Gods’ in outer cosmos to preserve the civilization out there.That only one ‘God’, and not two, could succeed to do that and thus it was either the Chief Justice or the Chief Registrar to survive.The council gave the Chief Justice an ultimatum and end process.That this roadmap was followed to the letter, to ensure only one ‘God’ survived.Counsel submitted that the dice was cast for Gladys long before the disciplinary process began.

17. Counsel submitted that the council said they would engage her in public, and they did to make the public believe that she headed a criminal enterprise; That they would intellectually and morally terrify any officer seen to be in her support, and they did; They said they could not give her a public hearing and they did; The Chief Justice was told to call meetings to reclaim his Judges and support their causes and he did.A strategy called Mbwa was adopted to ensure that the Chief Justice was visible within the Judiciary and get the support of the non-judicial staff officials, which he did among other steps to be taken.

18. The climax of the strategy was the 1st October, 2013, which they called the “blood bath”. This was the day the CRJ was to be dismissed and the Chief Justice to take over as the Commander-in-Chief.The counsel told the court that this evidence clearly shows that the CRJ had no fair hearing and that her removal was a foregone conclusion no matter what.

19. It was submitted that at this stage of interlocutory hearing the Applicant need only demonstrate a prima facie case of violation of the constitutional rights of the Applicant to obtain interim orders sought, which threshold the Applicant had exceeded. Counsel urged the court to find at this stage that the removal of Gladys was conceived and concluded in gross violation of Articles 25(c); 27(1) and (2); 28, 33 (1); 35 (1) (b) and (2) and 236 of the Constitution and grant her interim orders as prayed.In this regard, the court was urged to find that there is sufficient evidence at this stage to make a prima facie case that the right of the Applicant to fair administrative action, right to fair hearing and right to legitimate expectation to remain as CRJ were blatantly disregarded.That she would suffer irreparable damage if conservatory orders were not granted as prayed and that balance of convenience is in favour of granting the interim orders as prayed.

Respondent’s case 20. The Respondent, JSC has filed a Replying Affidavit of Winfrida Mokaya, a Registrar of the Judicial Service Commission in answer to the petition and the Notice of Motion application dated 31st October, 2013. She states that JSC is established under Article 171 of the Constitution and its functions are spelt out in Article 172 of the Constitution.That Article 172 (1) (c) of the Constitution provides that the JSC shall promote and facilitate the independence of the Judiciary and the efficient, effective and transparent administration of justice and shall appoint, receive complaints against, investigate and remove or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary in the manner prescribed by the Act of Parliament.

21. That parliament enacted the Judicial Service Act, 2011 to prescribe the procedures for appointment and discipline of registrars, magistrates and other judicial officers.That the office of the Chief Registrar is created under Article 161 (2) (c) of the Constitution as the Chief Administrator and Accounting Officer of the Judiciary. That Article 171 (1) provides that the Chief Registrar of the Judiciary shall also be the Secretary to the JSC.That the Chief Registrar is a judicial officer employed by JSC and as such her terms of service and engagement are as provided for under the Judicial Service Act, 2011.

22. In this respect, senior counsel Paul Muite for the Respondent submitted that the allegations by the Applicant that the Chief Registrar of the Judiciary is only accountable to the National Assembly, the Auditor General, the National Treasury, the Public Procurement Authority, the Ethics and Anti-Corruption Commission is a legal fallacy.That for purposes of disciplinary action, the Chief Registrar is answerable squarely to the JSC and it is proper for JSC to exercise its disciplinary powers over that office without reference to any other office.That indeed, contrary to the submissions by counsel for the Applicant, JSC may only act pursuant to a referral by the aforesaid Authorities, the contrary is true from an employer/employee perspective.

23. It was further submitted that the Judicial Service Act provides the manner in which the Judicial Service Commission is to discharge its disciplinary mandate and the Respondent followed this procedure to the letter in this case.Furthermore, it was submitted that JSC is also guided by Article 249 and 252 of the Constitution which makes provision for the objectives, general functions and powers of all commissions and independent offices established by the Constitution.That Section 12 of the Judicial Service Act 2011, provides that the JSC has the power to initiate the suspension and removal of the Chief Registrar and the grounds thereof, in the manner it did.

24. In this respect, counsel Muite submitted that the fact that Article 161 (2) (c) establishes the office of the Chief Registrar of the Judiciary does not make that office a constitutional office.That this office does not enjoy security of tenure as is the case with the office of the Chief Justice, the Judges and other Constitutional office holders. Therefore this office is governed by the appropriate statute, rules and regulations that appertain with respect to all other judicial officers, including registrars, employed by the JSC.

25. In particular, Judicial Service Act, 2011 makes provision for the Appointment, Discipline and Removal of judicial officers and staff. Part IV to the Third Schedule exclusively deals with discipline.Regulation 15 thereof delegates to the Chief Justice the power to interdict, the power to suspend and the power to administer a severe reprimand or a reprimand to a judicial officer.In this respect, the view taken by the CRJ is misguided and is based on misinterpretation of the law, counsel submitted.The Respondent therefore strongly submits that the resolution made at a meeting of JSC on 17th August, 2013 in Mombasa was in exercise of its mandate under Article 172 (1) (c) of the Constitution.

26. Accordingly two committees of the JSC responsible for Finance and Administration and Human Resource Management were mandated to inquire into various allegations of malpractice touching on but not limited to the process of procurement, employment, administration, finance and corporate governance of the judiciary.The Committees were also mandated to identify and frame the specific issues to which the Chief Registrar of the Judiciary needs to respond to, open up the inquiry to any person within the Judiciary and outside it, who might have issues to raise and the Committee to finalise their investigations within fifteen (15) days.Meanwhile, the JSC resolved that the Applicant should be sent on compulsory leave during the fifteen (15) days when the investigations would be in process.

27. That on 30th August, 2013 JSC called upon the public to provide relevant information and on 10th September, 2013 the JSC served upon the Petitioner the allegations of mismanagement outlined earlier and requested her to respond within 21 days.The Applicant was therefore duly informed of the allegations against her and the Respondent denies the allegations by the Applicant that she was not informed of the charges facing her.That on 1st October, 2013, the Applicant forwarded her response to the allegations and in keeping with the principle of affording the Applicant a fair disciplinary hearing allowed the Applicant to file a more comprehensive report after the 21 days deadline.The amended responses were filed 18 days after the expiry of the initial 21 days.The final report is found at pages 105 – 177 of the Applicant’s supporting affidavit.

28. That on 16th October, 2013 the Applicant appeared before the JSC when the disciplinary hearing was adjourned to 18th October, 2013 and her advocates also filed closing submissions dated 18th October, 2013 found on pages 99 – 104 of the Applicant’s supporting affidavit.It was the Respondent’s submissions that the Applicant was afforded reasonable time to prepare her defence and allegations to the contrary is without basis.

29. The Respondent further submits that in the Applicant’s response filed on 1st October, 2013 and subsequently amended on 15th October, 2013, the Applicant admitted 33 allegations and denied 38 others.That the Respondent properly dismissed the preliminary objections by the Applicant mainly because;i.The jurisdiction of the JSC to initiate disciplinary proceedings against the Petitioner is clearly provided for in Section 12 of the Judicial Service Act.ii.There is no statutory requirement that disciplinary proceedings be conducted in public and the Petitioner had no right to dictate the manner in which JSC proceeded; andiii.The Petitioner was represented by advocates of her choice and was given a fair hearing.

30. That on 18th October, 2013, the JSC unanimously resolved to remove the Petitioner from the office on the grounds of:i.Incompetence;ii.Misbehaviour;iii.Violation of the prescribed Code of Conduct of judicial officers;iv.Violation of Chapter 6 and Article 232 of the Constitution of Kenya, 2010 and insubordination.

31. That the subsequent public statements on the outcome of disciplinary process were in accordance with Section 24 of the Judicial Service Act, 2011 in the interest of transparency and public accountability.Mr. Muite ably submitted that the matter on which counsel for the Applicant had extensively canvassed goes to the merits of the case after the petition is fully heard and determined.That the real issue for consideration at this stage is whether the Applicant has fulfilled the requirements for grant of interim orders.The court agrees with the counsel for the Respondent in this regard and proceeds to examine the law applicable to the grant of the interim orders sought by the Applicant as against the backdrop of the facts presented before court.

32. The requirements for grant of interim orders were considered by a five (5) Judge bench comprising of Busigye, PJ, Arach-Amoko, DPJ, Mkawawa, Butasi and Kubo, JJ at the East African Court of Justice in the matter of Mary Aliviza & Okoth Mondoh v. Attorney General of Kenya and Secretary General of East African Community Application No. 3 of 2010, EALS, Law Digest 2005 – 2011 P.I. The Judges relying on the authority in Sergeant v. Paul (1949) 16 E.A.C.A 63 stated;“one, the granting or refusal of a temporary injunction which is an interlocutory order, is an exercise of judicial discretion which must be exercised judiciously.Two, the purpose of a temporary injunction is to preserve the status quo (see: Noor Mohamed Hanmohamed v. Kassamali Virji Madhani (1953) 20 E.A.C.A 8 and Garden Cottage Food Limited v. Milk Marketing Board [1984] A.C 130. Three, the conditions for the grant of an interlocutory injunction are now well settled in East Africa; -a.An applicant must show a prima facie case with a probability of success;b.An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages; andc.If the court is in doubt, it will decide an application on the balance of convenience.”

33. (See Giela v. Cassman Brown (1970) EA 358, E. A. Industries v. Trufoods, [1972] EA 420, Prof. Peter Anyang Nyongo and 10 others v. The Attorney General of Kenya and 5 others, Ref. No. 1 of 2006 (EACJ) and East African Law Society and 4 others v. The Attorney General of the Republic of Kenya and 3 others – Application No. 9 of 2007 (EACJ) arising out of Ref. No. 3 of 2007 (EACJ)

34. It is also pertinent to note that, this is an employment dispute which in addition to the constitutional provisions referred to by counsel in their very able submissions, due regard must be heard to the provisions of the Industrial Court Act, Act No. 20 of 2011 and the Employment Act, Act No. 11 of 2007. As noted earlier, the interim relief sought is in the nature of;i.A mandatory interim injunction to reinstate the Applicant to her previous employment pending the hearing and determination of the petition; andii.An injunction to stop the filling of the position of CRJ pending the hearing and determination of the petition.

35. Section 12 of the Industrial Court Act, 2011 provides;“(3)In exercise of its jurisdiction under this Act, the court shall have power to make any of the following orders.i.Interim preservation orders including injunctions in cases of urgency;ii.A prohibitory order;……………..(vii)An order for reinstatement of any employee within three years of dismissal, subject to such conditions as the court thinks fit to impose under circumstances contemplated under any written law;”With specific regard to the provision 12 (3) (vii), circumstances contemplated are to be found in the provisions of the Employment Act, 2007 and in particular Section 49 and 50 thereof.

36. In this regard, Section 50 provides; “In determining a complaint or suit under this Act involving wrongful dismissal or unfair termination of the employment of an employee, the Industrial Court shall be guided by the provisions of Section 49. ”

37. Section 49 (1) (2) and (3) recommends remedies of compensation, reinstatement, re-engagement and payment of terminal benefits whereas Section 49 (3) provides that in deciding which of the remedies to apply the court is to take into account any or all of the following;“a)the wishes of the employee.b)the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; andc)the practicability of recommending re-instatement or re- engagement.d)The common law principle that there should be no order for specific performance in contract for service except in very exceptional circumstances;e)the employee’s length of service with the employer;f)the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination;g)the opportunities available to the employee for securing comparable or suitable employment with another employer;h)the value of any severance payable by law;i)the right to previous claims or any unpaid wage expenses or other claims owing to the employee;j)any expense reasonably incurred by the employee as a consequence of the termination;k)any conduct of the employee which to any extent caused or contributed to the termination;l)any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; andm)any compensation, including ex-gratia or payment in respect of termination of employment paid by the employer and received by the employee”

38. The court is aware that these considerations come after the merits of the main suit have been heard and determined but not at interlocutory stage. However these are factors the court should be alive to in considering interim relief for reinstatement where it is sought as in this matter.

Issue I Whether the applicant has established a prima facie case with a probability of success. 39. In the matter of Professor Gitile J. Naituli vs. Multimedia University College & Another, Industrial Court of Kenya, at Nairobi Cause No. 1200 of 2012, I referred to the Court of Appeal decision in Mrao v. First American Limited and 2 others (2003) K.L.R wherein a prima facie case was defined to mean:“………. A case which on the material presented to court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

40. In Mary Aliviza & Another v. Attorney General Kenya (supra) the judges observed;“At this stage we must of course refrain from making any determination on the merits of the application or any defence on it. A decision on the merits or demerits of the case must await the substantive consideration of the facts and applicable law after full hearing of the Reference.”The court shall be so guided in this regard.

41. In the case in casu, JSC has responded to the various allegations made by the Applicant blow by blow to a level constituting satisfactory rebuttal at this stage of the hearing. However one particular issue stands out like a sore thumb in that not a whisper has been said about it by the Respondent in the extensive replying affidavit deponed to by Winfrida Mokaya, the Registrar of the JSC.The counsel for the Respondent in his very able submissions barely glossed on it in response to what might have been viewed as a small matter which on the other hand was extensively canvassed by counsel for the Applicant Mr. Donald Kipkorir in his effort to demonstrate to the court that a prima facie case warranting the grant of the relief sought had been made out.

Bias 42. This is the matter of absence of impartiality of the Respondent, and presence of real and apparent bias as demonstrated firstly by the deliberations of the JSC meeting in Mombasa on 17th August, 2013, where the decision to suspend and discipline the Applicant was mooted in her absence and without invitation.It was submitted that the meeting had no agenda to discuss the conduct of the Applicant in the first place and that it was attended by a cluster of Commissioners who had in the past demonstrated open bias against the Applicant.

43. That at the meeting of 18th August, 2013, where the decision to suspend and investigate the Applicant was made, the same group named herein before held sway to ensure that the Applicant vacated office.It is submitted that the named individuals were motivated by self-interest and not the good of the Judiciary.To demonstrate that the Applicant’s dice was cast long before she stepped before the disciplinary committee, counsel Donald Kipkorir extensively submitted on the trove of emails from and to the Chief Justice to demonstrate a contrived mission dubbed ‘The war strategy” to removethe Applicant and that it was agreed that for the public to accept the Applicant’s removal it had to be designed to be a fight against a criminal enterprise in the Judiciary.That the existence of the “War Council” and the “War strategy” is real as all the steps set out herein before to remove the Applicant were followed to the letter.

44. As the court has already observed, the Respondent chose not to say a word in response to these extensive accusations in the replying affidavit and in the submissions before court.The court was told this apparent bias was consummated in the refusal to allow the Applicant sufficient time to prepare her defence, outright rejection of her preliminary objections including objection to be heard by the named biased Commissioners and refusal to have her matter heard in public notwithstanding that she had been extensively accused in public and invitations made for the members of the public to bring complaints against her.

45. It was the submission by the counsel for the Applicant that this was not a case of real likelihood of bias but there was apparent and open bias by the JSC against the Applicant.Mr. Muite for the Respondent submitted that the issue of bias could only be raised against a court of law but not an employer at a disciplinary hearing. He dismissed the allegation as spurious and without basis.

46. Mr. Ekuru Aukot counsel assisting Mr. Donald Kipkorir took the court through various provisions of the Constitution which bound JSC in exercise of its constitutional and statutory authority and which in his view were violated by the conduct of JSC.In this regard the court was referred to Article 2 (1) which provides;“This Constitution is supreme law of the Republic and binds all persons and all state organs at both levels of government.”Mr. Aukot submitted that the JSC was not exempted by this clause and therefore must abide by the constitution at all times.

47. Mr. Aukot further referred the court to clause 2 (4) which provides;“…..and any act or omission in contravention of this constitution is invalid.”The counsel submitted that JSC clearly violated Article 47 (1) in that it did not accord the Applicant fair administrative action in the manner it conducted proceedings that preceded her termination.Furthermore, Article 50 (1) bound JSC to accord the Applicant a fair hearing and should have constituted an impartial tribunal or body for that purpose.

48. The counsel also referred the court to Article 20 (1) which provides;“The Bill of Rights applies to all law and binds all state organs and all persons.”It was his view that JSC conducted itself as if it was beyond the constitutional provisions and was wrong in that respect.That JSC had an obligation to accord the Applicant her rights and freedoms enshrined in the bill of Rights but had failed to do so. In this respect Article 35 on access to information guarantees every citizen access to;“Information held by another person and required for the exercise or protection of any right or fundamental freedom.”The counsel submitted that inspite of various requests, information required by the Applicant to defend herself was withheld by JSC which action constituted unfair labour practice in violation of Article 41 of the Constitution.

49. For these reasons, counsel urged the court to grant interim relief sought as the Applicant had made a prima facie case against the Respondent.

50. The court was referred to the case of Ridge v. Baldwin and others [1963] 2 All E.R 12 (House of Lords) in which the Chief Constable of County Borough Police Force was summarily dismissed by the watch committee. The Chief Constable had previously been indicted for alleged criminal offences and had been acquitted but his conduct was severely criticized by the trial judge.The appeal by the Chief Constable against the decision of the watch committee was dismissed by Home Secretary.

51. The issue for determination was whether the rules of natural justice were applicable to proceedings for dismissal. It was held by the House of Lords (Lord Reid, Lord Morris of Borth-y-GLA, Lord Hudson and Lord Devlin with Lord Evershed dissenting)“(i)The decision of the watch committee on March 7, 1985 to dismiss the appellant was null and void for the following reasons;(a)in exercising the power of dismissal conferred by S. 191 (4) of the Municipal Corporations Act, 1882 the watch committee were bound to observe the principles of natural justice, but in this instance the committee had not observed them, for the appellant had not been charged nor informed of the grounds on which they proposed to proceed and had not been given a proper opportunity to present his defence.”

52. Now the rules of natural justice nemo judex in causa sua, and audi alterram partem translated require;(i)No person shall be a judge in his own cause; and(ii)No person shall be condemned unheard.There is an arguable case, though not tested at this stage, that some of the Commissioners of JSC had a personal interest in the removal of the Chief Registrar and that a strategy had been developed through connivance with persons in and out of JSC to implement that strategy.The court at this stage is satisfied that a prima facie case in this respect has been made out by the Applicant.

Issue 2. Whether the Applicant has demonstrated that she will suffer irreparable harm which cannot be adequately compensated by an award of damages in the event the relief sought is not granted. 53. Establishment of a prima facie case does not suffice alone to warrant the court to grant interim relief of the nature sought by the Applicant.A further consideration is whether the Applicant has demonstrated that she will suffer irreparable harm which cannot be adequately compensated by an award of damages in the event the relief sought is not granted.It is the Applicant’s case that this has been adequately demonstrated whereas the Respondent submits strongly that the threshold has not been met.The court was referred by the Respondent to the Ugandan case of Tommy Otto vs. Uganda, Wildlife Authority [2002] HCT-00-CC-CS-2008 of 2002 wherein Hon. Justice Lameck N. Mukasa observed upon finding that the plaintiff was unlawfully summarily dismissed;‘“It is therefore fundamental that, before court can exercise its discretion to make an order for reinstatement on a finding of unlawful dismissal, it considers whether it is practicable for the employer to comply with the order. The Industrial Court has a prime duty of protecting the rights of workers. Its view on reinstatement was clearly stated in ATG WU vs. UTC LTD (I.C.C. No. 19 of 1971) wherein the Respondent UTC was found to have wrongfully dismissed two employees.The court observed; -“As regards reinstatement, this court has stated time and again that it cannot order reinstatement of any employee to any company even if he may be wrongfully dismissed. The only alternative remedy in such circumstances is to order payment of compensation.”

54. With respect to counsel for the Respondent this is not the law in Kenya today. As stated earlier, Section 12 (3) (vii) of the Industrial Court Act, Act No. 20 of 2011, empowers the Industrial Court to reinstate an employee within three years of dismissal subject to such conditions as the court thinks fit and as guided under any written law.The court has specifically identified Section 49 of the Employment Act No. 11 of 2007, to be the statute providing relevant guidelines on matters of reinstatement and in particular the following guidelines are relevant to this case;a.The wishes of the employee;b.Circumstances to which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination;c.The practicability of recommending reinstatement or re-engagement; andd.The common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances.

55. The court observes again that these factors come into play at the end of the hearing of the main suit, in which a finding of wrongful dismissal and unfair termination has been arrived at by the judge.It is important to note that in the petition itself, the Applicant has specifically sought for an order of certiorari to issue to quash the letter of removal dated 18. 10. 13 and an order of mandamus to issue compelling the Respondent to comply with the applicable law.The Applicant has also specifically sought an order for compensation to issue for violation of the Petitioner’s rights and an inquiry to quantum be gone into.Strictly speaking, no order for reinstatement has been specifically pleaded the way we know it in labour proceedings.

56. It may be that the effect of quashing the letter of removal has the effect of reinstating the Applicant to her previous office but that is a matter to be canvassed at the hearing of the petition itself.The pertinent issue at this point is that, on the face of the petition itself, the Applicant has sought alternative remedy to wit; compensation for the violation of the Applicant’s rights once the petition has been fully heard and determined.

57. It was submitted by Mr. Donald Kipkorir for the Applicant that the Office of the Chief Registrar is a unique office without an equivalent and that failure by the court to stop the process of replacing the Applicant which is now underway will render the petition nugatory. That the Applicant cannot be able to get same job elsewhere in Kenya.That she is the first occupant of the Office of CRJ upon a rigorous public vetting process and therefore this constitutes special circumstances to compel the court to use its discretion to stop the recruitment process since there was already in place an Acting CRJ.That in any event the Applicant is ready and willing to take leave upon being reinstated in the interim pending the hearing and determination of the petition.

58. The Respondent countered this proposition with the authority in the case of Alfred Nyungu Kimungui -vs- Bomas of Kenya; Industrial Court of Kenya at Nairobi Cause No. 620 of 2013 wherein Hon. Justice James Rika observed as following in a ruling dated 28th May, 2013;“Ordinarily, reinstatement of an employee is a substantive remedy, not a temporary relief. The law does not contemplate that reinstatement issues as a provisional measure. It is a remedy that should normally be granted upon the full hearing of the employer, and the employee.”I could not agree more except to say that as guided by Section 49 of the Employment Act this remedy may be granted in exceptional circumstances. Indeed Rule 16 (7) (c), of the Industrial Court (Procedure) rules, 2010 contemplates such happening where it provides “the court shall not grant an ex parte order that reinstates into employment an employee whose services has been terminated.”

59. In the matter of Professor Gitile J. Naituli referred to earlier in this judgment, the Respondent University had purported to replace the Applicant as the Deputy Principal of Multi Media University College for the mere reason that the college had now received a charter and had been elevated into a full university.The Applicant had held the position for five (5) years and his contract was due to expire on 7th February, 2016. Meanwhile, the University Act 2012, and Section 76 (2) thereof provided that a person who held a position of principal or Deputy Principal of a constituent college of a public university shall remain in office for the remaining period of his or her term of office.The Respondent had commenced the process of removing the Applicant and appointed an Acting Deputy Vice Chancellor (Finance and Administration) to replace the Applicant when the matter came before me.The court found that the Applicant had established a prima facie case with a probability of success; that the Applicant’s right had been infringed and had also shown compensation could not adequately resolve the infringement especially because the Professor had been stripped of a leadership position and reduced to a teaching job only within the institution.

60. I distinguish this case, with the present one in that the Applicant was still in the employment of the Respondent, had not been subjected to any disciplinary action and it was practical to continue working in a position which he had served already for five (5) years pending the hearing and the determination of the main suit.I specifically found;“The Claimant/Applicant has in the circumstances demonstrated that he will suffer irreparable harm if the application is not granted.”

61. With respect to the Applicant, this is not the case here. I am vindicated in this finding by the decision of the East African Court of Justice in Mary Aliviza case (supra) in refusing to grant interim relief to stop implementation of the Constitution of Kenya 2010 pending the hearing of the Reference in a matter which they also found that; “the totality of the facts disclose bona fide serious issues to be investigated by the court” citing American Cyanamid co vs. Ethicon Ltd [1975] 1 All ER 504. The full bench of the East African Court of Justice in this matter I participated as counsel for the 2nd Respondent (Secretary General of the East African community) stated;“Here we must say that since the Referendum in question, a lot of water has run and continues to run under the bridge. Stopping the process by way of a temporary injunction, would occasion more injury should the court find for the Respondents in the Reference.In the event, however, that the court finds for the Applicants, it is our strong view that all will have been done, can be undone with minimum injury, if any, to either party.”This applies equally to the present case since the law allows reinstatement within three years and in the alternative an award of damages.

62. Though it may be unnecessary to delve into the issue of balance of convenience in view of the court’s finding above, it is opportune to note that the Office of the Chief Registrar of the Judiciary plays the role of head of Judiciary Administration and Accounting functions.It is in public interest that, that office which is critical to the functioning of the Judicial Arm of Government does not remain vacant. That is where the balance of convenience falls with regard to this matter.The application is therefore not allowed and costs will be in the cause.

DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF NOVEMBER, 2013. MATHEWS N. NDUMAPRINCIPAL JUDGE