[2016] KEHC 7272 (KLR)

[2016] KEHC 7272 (KLR)

The court found that the Judicial Service Commission's failure to notify and invite the applicant to the hearing of the complaint, despite a clear promise to do so, constituted a breach of her legitimate expectation and procedural fairness. The applicant had established a prima facie case with a likelihood of success, as the JSC's actions potentially violated her constitutional right to fair administrative action under Article 47. However, the court held that public interest did not favour halting the JSC's disciplinary process entirely, given its constitutional mandate. Instead, the court ordered that the JSC could proceed with the complaint but must strictly comply with Article 47 and...

Citation
[2016] KEHC 7272 (KLR)
Parties
Applicant: Hon Lady Justice Njoki S Ndungu; Respondent: Judicial Service Commission; Interested Party: Apollo Mboya
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
6 June 2016
Case Number
Petition 218 of 2016
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders
Outcome
Petition partly allowed; interlocutory conservatory orders granted in part.
Judges
JL Onguto
Legal Topics
Legitimate Expectation, Fair Administrative Action, Discipline of Judges, Conservatory Orders, Procedural Fairness
Source Language
English
Constitutional Law Administrative Law Legitimate Expectation Fair Administrative Action Discipline of Judges Conservatory Orders Procedural Fairness

Case Brief

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Parties

Hon Lady Justice Njoki S Ndungu

Applicant

Judicial Service Commission

Respondent

Apollo Mboya

Interested Party

Procedural Posture

Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders

Legal Issues

  1. 1 Whether failure to notify and invite a party to the hearing of a complaint against them was a breach of the doctrine of legitimate expectation.
  2. 2 What are the key elements for the grant of conservatory orders.

Ratio Decidendi

The court found that the Judicial Service Commission's failure to notify and invite the applicant to the hearing of the complaint, despite a clear promise to do so, constituted a breach of her legitimate expectation and procedural fairness. The applicant had established a prima facie case with a likelihood of success, as the JSC's actions potentially violated her constitutional right to fair administrative action under Article 47. However, the court held that public interest did not favour halting the JSC's disciplinary process entirely, given its constitutional mandate. Instead, the court ordered that the JSC could proceed with the complaint but must strictly comply with Article 47 and...

Court Disposition

Petition partly allowed; interlocutory conservatory orders granted in part.

Orders

  • Pending the hearing of the petition, the JSC is at liberty to proceed and process the complaint by the interested party against the applicant, provided that the JSC must substantively comply with and observe the provisions of Article 47 of the Constitution and the Fair Administrative Action Act, and afford the...
  • The costs of the application shall abide any order on costs made upon determination of the petition.