[2022] KEELRC 13570 (KLR)

Mongare v Judicial Service Commission (Employment and Labour Relations Petition E029 of 2021) [2022] KEELRC 13570 (KLR) (20 December 2022) (Judgment)

Neutral citation: [2022] KEELRC 13570 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nakuru

Employment and Labour Relations Petition E029 of 2021

HS Wasilwa, J

December 20, 2022

Between

Alice B Mongare

Petitioner

and

Judicial Service Commission

Respondent

Judgment

1. The Petitioner moved this court vide a Petition dated December 12, 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 July 2, 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 November 22, 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 April 22, 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 May 7, 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 June 25, 2012 however on August 22, 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 December 20, 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 RepublicvJohnson 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.

Response. 24. The respondent opposed the petition and filed a replying affidavit deposed upon on December 12, 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 March 12, 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 Kes 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 Kes 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 April 26, 2012 setting out the complaints lodged against the Petitioner and giving her 21 days to respond. On May 7, 2012 the respondent received a response and a disciplinary hearing was scheduled for September 7, 2012 which was deferred to allow for further investigation, this information was transmitted to the Petitioner vide the letter of October 25, 2012 and the new date for hearing was slated for November 29, 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 July 23, 2013.

31. Upon receiving the communication on retirement, the Petitioner challenged the same and lodged an appeal dated August 7, 2013 which was considered in the meeting of December 6, 2013 disallowing the same. A review was subsequently filed on February 18, 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 April 26, 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 May 27, 2015 and came into force on June 17, 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 November 9, 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 May 14, 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 July 7, 2014 and July 8, 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 July 10, 2013 but continued to unlawfully receive salary till October 31, 2015 unjustly enriching herself to a tune of Kes 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 July 10, 2013 and only raised till petition in December, 2021 without an explanation as to the delay.

Hearing. 44. On October 4, 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 July 2, 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 v 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 October 14, 2022 and a further submission on November 1, 2022. The respondent on the other hand filed its submissions on November 1, 2022.

Petitioner’s Submissions. 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 anothervCommissioner of Lands and 3 others [2015] 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 RutovJudicial Service Commission and another [ 2019] eKLR.

52. The Petitioner also cited the case of Shollei v Judicial Service Commission & another (Petition 34 of 2014) [2022] KESC 5 (KLR) (17 February 2022) (Judgment) where the Supreme Court gave guiding principles on disciplinary proceedings before Judicial Service Commission that; -“We have considered that the question on the administrative procedure applicable in disciplinary proceedings before JSC (being a major employer in one arm of the government) have been recurring in different cases before this Court and in Courts below. As a result, we are of the opinion that the following guiding principles ought to assist the Courts when considering a matter concerning disciplinary proceedings before JSC. Guiding principles on disciplinary proceedings before Judicial Service Commission.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) [2022] 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 andanothervMigori County Transport Sacco [2021] 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 anothervStephen Mutinda Mule and 3 others [2014] eKLR.

Respondent’s Submissions. 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 MananivTeachers Service Commission [2018] 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” v Caltex Oil (Kenya) Ltd (1989) KLR. Where Nyarangi J stated as follows:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

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 v Henkel Chemicals (EA) Limited (2013) eKLR where Justice Radido held: -“In my view a litigant should not avoid the provisions of the Employment Act regarding unfair termination or wrongful dismissal by going behind the statute and seeking to rely directly on article 41 of the Constitution on the right fair labour practices is given effect in various statutes of Employment Act and the Labour Relations Act are primary.”

63. They also cited the case of Joseph Muturi Mbariah & another v Council of JKUAT (2013) eKLR where Lady Justice Mbaru held that:-“direct reliance on fundamental rights as contained in the Constitution is impermissible when the right in issue is regulated by legislation as is actually the case with Employment Act which directly regulates fair Labour practices. Which includes suspension termination and dismissal. When a legislation is enacted to give effect to a constitutional right a litigant cannot by pass the legislation and rely directly on the Constitution without challenging that legislation as falling short of the constitutional standard.”

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 [2019] eKLR at para 39 wherein the Court noted thus:“It is indisputable that the procedures contemplated under Regulations 26 and 28 are different. The power to elect which Regulation to follow is vested upon the Chief Justice. Under Regulation 28, it is the Chief Justice who has to form the opinion that it is desirable in the public interest that the service of the 1st Respondent should be terminated on grounds which cannot suitably be dealt with under any other provision of the Regulations.”

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 April 26, 2012, which the Petitioner responded in detail to the complaints against her vide a letter dated January 14, 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:“23. An officer in respect of whom disciplinary proceedings are to be held under this Part shall be entitled to receive a free copy of any documentary evidence relied on for the purpose of the proceedings, or to be allowed access to it. 2. The officer may also be given a copy of the evidence (including documents tendered in evidence) after the proceedings are closed, on payment of five shillings per page of each document tendered in evidence: Provided that they shall not be entitled to copies of office orders, minutes, reports or recorded reasons for decisions.

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 May 7, 2012 and invited to appear before the Judicial Service Commission Human Resource Committee on November 29, 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 April 26, 2012. Additionally that the Petitioner responded to the notice of retirement in public interest through her letter dated January 14, 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 January 14, 2013 together with his own recommendations and On July 10, 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 July 23, 2013.

69. To support the argument above, the respondent relied on the case R v Immigration Appeal Tribunalex-parte Jones [1988] I WLR 477, 481 where it was held that: -“The hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision making bodies other than Courts and bodies whose procedures are laid down by statute are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made ...”

70. Similarly, the Court of Appeal in Judicial Service Commission v Gilbert Mwangi Njuguna & another [2019] eKLR the Court held thus:“upon our examination and analysis of the contents of the letter from the Chief Justice to the 1st respondent dated October 27, 2006, we are satisfied that the 1st respondent was given details of the complaints against him and he was given an opportunity to be heard in relation to those complaints. Indeed, and as already stated, the 1st Respondent by letter date November 11, 2006 gave detailed response to the complaints. In addition, the evidence on record reveals that the 1st Respondent was given an opportunity to appeal against the decision to retire him in public interest.”

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) [2020] eKLR where the court was of the opinion that;-“a person alleging a violation of article 27 of the Constitution must establish that because of the distinction made between the claimant and others, the claimant has been denied equal protection or benefit of the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and a violation of the Constitution.”

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 [2017]eKLR, where Maraga J (as he then was), echoed this position thus:“As I have said in Kenya, reinstatement is one of the remedies provided for in section 49(3) as read with section 50 of the Employment Act and section 12(3) (vii) of the Industrial Court Act that the Court can grant. Reinstatement is, however, not an automatic right of an employee. It is discretionary and each case has to be considered on its own merits based on the spirit of fairness and justice in keeping with the objectives of industrial adjudication. In this regard, there are fairly well settled principles to be applied. For instance, the traditional common law position is that Courts will not force parties in a personal relationship to continue in such relationship against the will of one of them.”

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 v Attorney General [2014] eKLR at para 45 wherein the Court observed that:“Having found that the 1st Respondent’s retirement was in accordance with the law it follows therefore that there was no reason for the learned Judge to award damages and interest thereon as he did. Besides, both parties at the trial Court conceded that the 1st respondent’s salary which had been withheld during his interdiction, between September 28, 2004 and June 8, 2005, had since been released to him in line with his retirement letter.

76. Furthermore, that the Petitioner admitted during cross-examination, receiving public funds in the form of monthly salary from July 2013 to October 31, 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 (Kes. 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.

Determination 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;90. LimitationsNotwithstanding the provisions of section 4(1) of the Limitation of Actions Act (cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof”.

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 v Nathein Tirop Koech and 4 others (2018)eKLR.

86. In Njuguna Gathuru v Attorney General (2016) eKLR, Lenaola J. as he then was and as considered by this Court in Timothy Nchoe Sironka v the Judicial Service Commission stated as follows;-“50. The Petitioners’ claim relates to a breach of pertinent provisions of the Constitution and not on issues of pure employment relation. It is my finding that the issue of limitation does not arise and therefore this petition is not time-barred.53. The position adopted above also answers question 2 above that issues relating to state officers are not limited to the provision of the Employment Act 2007 and therefore this petition is not a simple claim disguised as a petition”.

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 December 21, 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 December 6, 2011 the Petitioner responded denying the said allegations.

92. After the response to the allegation the Petitioner was served with a letter dated February 22, 2012 deferring her promotion. The letter signed by the former secretary of the JSC Boss Shollei indicated that theJSC had at its meeting held on February 7, 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 April 26, 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 May 7, 2012 reiterating her earlier responses denying any wrong doing on her part.

96. Vide a letter dated June 25, 2012, the Petitioner was issued with summons to appear before the JSC Human Resource Management Committee on Friday July 13, 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 November 29, 2012 for the disciplinary hearing and vide a letter dated December 20, 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;“Notice of Retirement in the Public InterestFollowing your appearance before the Judicial Service Commission Human Resource Management Committee on November 29, 2012 for the hearing of your discipline case the Committee resolved that proceedings of your retirement on grounds of public interest be initiated in accordance with section 27(1) part vi third schedule of the Judicial Service Act, 2011. Accordingly, you are hereby accorded the opportunity to make any representation if you so wish against your retirement on grounds of public interest.The reasons for which your retirement is contemplated were communicated to you in the show cause letter Ref. No. JSC ½ dated April 26, 2012 that you responded to on May 7, 2012. You answered to the same charges when you appeared before the Judicial Service Commission Human Resource Management Committee on November 29, 2012. Your representations, if any, should be received in this office within twenty one (21) days from the date hereof. If no response is received within the stipulated period, the intended action will be taken without reference to you”.

99. As per the Respondent’s replying affidavit the Petitioner responded to the notice of retirement in the public interest through her letter of January 14, 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 January 14, 2013 with his recommendation.

102. In the Respondent’s meeting of July 10, 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 July 23, 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 August 7, 2013 but vide a letter dated January 17, 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 January 17, 2014.

105. The Petitioner made her 2nd appeal vide a letter dated December 18, 2014 indicating that she had been condemned unheard.

106. This second appeal was again dismissed and a decision to this effect communicated on January 27, 2017.

107. She again sought for review of this decision vide her letter of March 28, 2018 and the same was still disallowed vide her letter of March 13, 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;19. Punishments(1)The following are the sanctions which may be inflicted on an officer as a result of disciplinary proceedings under this Part—(a)dismissal;(b)stoppage of increment of pay;(c)withholding of increment;(d)deferment of increment;(e)severe reprimand and reprimand;(f)recovery of the cost or part of the cost of any loss or breakage caused by default or negligence, provided no such cost has been recovered by surcharge action under the appropriate financial instructions or regulations.(2)Nothing in this paragraph shall limit the powers conferred by this Schedule to require an officer to retire from the public service on the grounds of public interest.(3)No punishment shall be inflicted on any officer which would be contrary to any law for the time being in force”.

111. Rule 25 on the other hand provides for proceedings for dismissal and states as follows;25. Proceedings for dismissal(1)Where the Chief Justice, after such inquiry as they may think fit to make, considers it necessary to institute disciplinary proceedings against an officer on the ground of misconduct which, if proved, would in the Chief Justice‘s opinion, justify dismissal, he shall frame a charge or charges against the officer and shall forward a statement of the said charge or charges to the officer together with a brief statement of the allegations, in so far as they are not clear from the charges themselves, on which each charge is based, and shall invite the officer to state, in writing should he so desire, before a day to be specified, any grounds on which he relies to exculpate themselves.(2)If the officer does not furnish a reply to the charge or charges within the period specified, or if in the opinion of the Chief Justice he fails to exculpate themselves, the Chief Justice shall cause copies of the statement of the charge, or charges, and the reply, if any, of the officer to be laid before the Commission, and the Commission shall decide whether the disciplinary proceedings should continue or not.(3)If it is decided that the disciplinary proceedings should continue, the Commission shall appoint a Committee or Panel to investigate the matter consisting of at least three persons who shall be persons to whom the Commission may, by virtue of the Constitution, delegate its powers:Provided that the Chief Justice shall not be a member of the Committee or Panel, but if puisne judge of the High Court have been designated as members of the Commission under the Constitution, they may be members of the Committee or Panel.(4)The Committee or Panel shall give the officer a written notice of not less than fourteen days specifying the day on which they may be required to appear before it to answer to the charges made against them.(5)If witnesses are examined by the Committee or Panel, the officer shall be given an opportunity of being present and of putting questions on their own behalf to the witnesses, and no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto.(6)The Director of Public Prosecutions shall, if requested by the Commission, direct a legally qualified officer from the Office of the Director of Public Prosecutions to present to the Committee or Panel the case against the officer concerned.(7)The Committee or Panel shall permit the accused officer to be represented by an advocate.(8)If during the course of the investigation, grounds for the framing of additional charges are disclosed, the Chief Justice shall follow the same procedure adopted in framing the original charges.(9)The Committee or Panel, having investigated the matter, shall forward its report thereon to the Commission together with the record of the charges framed, the evidence led, the defence and other proceedings relevant to the investigation; and the report of the Committee or Panel shall include—(a)a statement whether in the Committee or Panel’s judgement the charge or charges against the officer have been proved and the reasons therefor;(b)details of any matters which, in the Committee or Panel’s opinion, aggravate or alleviate the gravity of the case; and(c)a summing up and such general comments as will indicate clearly the opinion of the Committee or Panel on the matter being investigated, but the Committee or Panel shall not make any recommendation regarding the form of punishment to be inflicted on the officer.(10)The Commission, after consideration of the report of the Committee or Panel, shall, if it is of the opinion that the report should be amplified in any way or that further investigation is desirable, refer the matter back to the Committee or Panel which shall conduct the investigation for a further report.(11)The Commission shall consider the report and shall decide on the punishment, if any, which should be inflicted on the officer or whether he should be required to retire in the public interest”.

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;-27. Retirement on Grounds of public interest(1)If the Chief Justice, after having considered every report in their possession made with regard to an officer, is of the opinion that it is desirable in the public interest that the service of such officer should be terminated on grounds which cannot suitably be dealt with under any other provision of this Schedule, he shall notify the officer, in writing, specifying the complaints by reason of which their retirement is contemplated together with the substance of any report or part thereof that is detrimental to the officer.(2)If, after giving the officer an opportunity of showing cause why he should not be retired in the public interest, the Chief Justice is satisfied that the officer should be required to retire in the public interest, he shall lay before the Commission a report on the case, the officer’s reply and their own recommendation, and the Commission shall decide whether the officer should be required to retire in the public interest”.

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 December 20, 2012.

125. After this notice and response thereto, the Petitioner was retired in the public interest vide a letter dated July 23, 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 v 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 v Cruisalt Ltd (No. 1) (1978) IKLR 103 (1976 – 80) IKLR 835. Madan J as he then was he stated as follows;“Pleadings contain averments of the parties concerned. Until they are proved or disapproved or there is an admission of them or any of them by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence….”

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 v 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 theJSC.

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;47. Fair administrative action(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a Court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration”.

140. The Petitioner’s right to fair hearing under article 50(1) of the Constitution was breached which opines as follows;-50Fair hearing(1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body”.

141. Article 41 of the Constitution on the other hand states as follows;-

“41. Labour relations(1)Every person has the right to fair labour practices.(2)Every worker has the right—(a)to fair remuneration;(b)to reasonable working conditions;(c)to form, join or participate in the activities and programmes of a trade union; and(d)to go on strike.(3)Every employer has the right—(a)to form and join an employers organisation; and(b)to participate in the activities and programmes of an employers organisation.(4)Every trade union and every employers’ organisation has the right—(a)to determine its own administration, programmes and activities;(b)to organise; and(c)to form and join a federation.(5)Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

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