[2020] KEELRC 1712 (KLR)
The Court found that its prior judgment, which ordered the Respondents to treat the Petitioner as on interdiction with entitlement to half salary and benefits, had not been stayed or overturned. The Respondents' failure to comply with these orders was unjustified. The legal framework and terms of service require...
Source-derived case information.
- Citation
- [2020] KEELRC 1712 (KLR)
- Parties
- Applicant: NML; Respondent: Judicial Service Commission; Respondent: Chief Registrar of the Judiciary
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition 152 of 2018
- Procedural Posture
- Constitutional Petition / Post Judgment Enforcement Application
- Outcome
- Application allowed. Respondents directed to attend court to explain non-compliance. Costs to Petitioner.
- Judges
- MSA Makhandia
- Legal Topics
- Disciplinary Procedure, Interdiction, Remuneration on Suspension, Judicial Officer Rights, Enforcement of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
NML
Applicant
Judicial Service Commission
Respondent
Chief Registrar of the Judiciary
Respondent
Procedural Posture
Constitutional Petition / Post Judgment Enforcement Application
Legal Issues
- 1 Whether the Respondents are obligated to restore the Petitioner to the payroll and reinstate benefits as an interdicted judicial officer pending conclusion of the disciplinary process.
- 2 Whether non-compliance with the Court's prior orders warrants coercive measures against the Respondents.
Ratio Decidendi
The Court found that its prior judgment, which ordered the Respondents to treat the Petitioner as on interdiction with entitlement to half salary and benefits, had not been stayed or overturned. The Respondents' failure to comply with these orders was unjustified. The legal framework and terms of service require that an interdicted judicial officer be paid half salary and be barred from other income-generating activities, necessitating compliance to preserve the Petitioner's dignity. The Court therefore directed the Chief Registrar/Secretary, Judicial Service Commission, or her delegate, to attend court and explain the non-compliance, warning of coercive measures in case of further...
Court Disposition
Application allowed. Respondents directed to attend court to explain non-compliance. Costs to Petitioner.
Orders
- The Chief Registrar/Secretary, Judicial Service Commission (2nd Respondent) and/or her delegate to attend Court on 7 February 2020 to explain non-compliance with court orders and steps taken to comply.
- Failure to attend will result in the Court exercising coercive powers to ensure attendance.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
PETITION NO. 152 OF 2018
IN THE MATTER OF: ARTICLES 2(5),(6), 10, 19, 20, 21, 22, 23, 27, 28, 29, 160(2)(a), 165, 172, 236, 258, 259(1),(3) AND 260 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: ARTICLE 47 OF THE CONSTITUTION AND SECTIONS 3, 4, 5, 6 & 7 OF THE FAIR ADMINISTRATION ACTION ACT (2015) AND ARTICLE 159(2)(d) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: THE ACCESS TO INFORMATION ACT
ARTICLE 23(1) OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
INTERNATIONAL COVENANT ON ECONOMIC AND SOCIAL RIGHTS
ARTICLE 25(1) OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
AFRICA CHARTER ON HUMAN AND PEOPLES RIGHTS
CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN ARTICLE 12
INTERNATIONAL LABOUR ORGANISATION GENERAL COMMENT NO. 14 ON THE RIGHT TO HEALTH, COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
ILO GUIDELINES ON HIV/AIDS IN THE WORKPLACE
AND
IN THE MATTER OF: SECTION 5 OF THE PENSIONS ACT
AND
IN THE MATTER OF: SECTIONS 12, 41, 43 & 45 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT NO. 20 OF 2011, SECTION 12 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT RULES
AND
IN THE MATTER OF: JUDICIAL SERVICE ACT SECTION 5, 8, 32(3) AND RULES 25(1-11) OF THE 3RD SCHEDULE
BETWEEN
NML .......................................................................................................PETITIONER
VERSUS
JUDICIAL SERVICE COMMISSION........................................1st RESPONDENT
CHIEF REGISTRAR OF THEJUDICIARY.............................2nd RESPONDENT
RULING
1. On 11 October 2019 the Court delivered a judgment in which it ordered the Judicial Service Commission to commence and conclude a fresh the disciplinary case concerning the Petitioner within 60 days.
2. The Court also ordered that the Petitioner be deemed as being on interdiction and be paid half salary from 22 August 2016 up to date of conclusion of the fresh disciplinary process (the Court issued other orders which are not relevant for purposes of this Ruling).
3. The orders were not complied with and on 12 November 2019, the Petitioner moved the Court under certificate of urgency seeking an order directing the Respondents to restore her to the payroll and reinstate certain benefits she was entitled to as an employee on interdiction.
4. The Respondents filed Grounds of Opposition to the application on 14 November 2019 and the Court heard submissions from the parties on 10 December 2019 (despite the Court encouraging the parties to resolve the dispute of restoration to the payroll and reinstatement of benefits accruing to an interdicted judicial officer, there was no resolution).
5. The Court has considered the application, the affidavit in support, the Grounds of Opposition and the brief oral highlights.
6. It is not in dispute that in terms of the judgment of the Court, which has not been overturned, the Petitioner is a judicial officer on interdiction and that pursuant to the applicable legal framework in place and terms and conditions of service, she is entitled to half salary and other benefits.
7. Under the legal framework and terms and conditions of service, the Petitioner is estopped from engaging in any other income generating endeavor, yet she has to live in dignity.
8. Until the judgment is stayed or overturned on Appeal, there is no valid or legitimate reason why the Respondents should not comply.
9. Considering all the above and the record, the Court directs that the Chief Registrar/Secretary, Judicial Service Commission (2nd Respondent) and/or her delegate being a senior officer within the Judicial Service Commission attends this Court on 7 February 2020 to explain why the orders of the Court have not been complied with and what steps are being taken to comply.
10. In case the Chief Registrar/Secretary, Judicial Service Commission fails to attend Court, the Court will not hesitate to use its coercive powers to ensure attendance.
11. The Petitioner will have costs of this application.
Delivered, dated and signed in Nairobi on this 31st day of January 2020.
Radido Stephen
Judge
Appearances
For Petitioner Mr Okemwa instructed by Okemwa & Co. Advocates
For Respondents Mr Malenya instructed by Gumbo & Associates, Advocates
Court Assistant Judy Maina