[2013] KEHC 6008 (KLR)
The court declined to grant the prayers for certiorari and reinstatement as these would amount to final orders at an ex-parte stage, which would be improper without hearing all parties. However, the court found that a prima facie case had been made for the issuance of a conservatory order to restrain the Judicial...
Source-derived case information.
- Citation
- [2013] KEHC 6008 (KLR)
- Parties
- Applicant: Gladys Boss Shollei; Respondent: Judicial Service Commission; Respondent: Hon. Ms. Emily Ominde; Respondent: Ahmednasir Abdullahi; Respondent: Warsame, JA
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 421 of 2013
- Procedural Posture
- Constitutional Petition / Ex Parte Interlocutory Application for Conservatory Orders
- Outcome
- Conservatory order granted restraining disciplinary proceedings; other prayers declined pending inter partes hearing.
- Judges
- DAS Majanja
- Legal Topics
- Judicial Officer Discipline, Compulsory Leave, Conservatory Orders, Fair Administrative Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Boss Shollei
Applicant
Judicial Service Commission
Respondent
Hon. Ms. Emily Ominde
Respondent
Ahmednasir Abdullahi
Respondent
Warsame, JA
Respondent
Procedural Posture
Constitutional Petition / Ex Parte Interlocutory Application for Conservatory Orders
Legal Issues
- 1 Whether the decision to send the petitioner on compulsory leave violated her constitutional rights and the Judicial Service Act.
- 2 Whether the court should grant conservatory orders restraining the respondents from commencing disciplinary proceedings against the petitioner pending inter partes hearing.
Ratio Decidendi
The court declined to grant the prayers for certiorari and reinstatement as these would amount to final orders at an ex-parte stage, which would be improper without hearing all parties. However, the court found that a prima facie case had been made for the issuance of a conservatory order to restrain the Judicial Service Commission from commencing or continuing disciplinary proceedings against the petitioner. This was necessary to preserve the petitioner's rights and ensure that the matter could be fully ventilated in court without the risk of the proceedings being rendered nugatory.
Court Disposition
Conservatory order granted restraining disciplinary proceedings; other prayers declined pending inter partes hearing.
Orders
- The 1st respondent is restrained by way of a conservatory order from commencing or continuing any disciplinary proceedings against the petitioner pending interparties hearing of the application on 27th August 2013.
- The Notice of Motion and Petition shall be served forthwith.
Full Case Text
Judgment text and source record
27 paragraphs
Shollei v Judicial Service Commission & 3 others (Petition 421 of 2013) [2013] KEHC 6008 (KLR) (Constitutional and Human Rights) (22 August 2013) (Ruling)
Gladys Boss Shollei v Judicial Service Commission & 3 other [2013] eKLR
Neutral citation: [2013] KEHC 6008 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Constitutional and Human Rights
Petition 421 of 2013
DAS Majanja, J
August 22, 2013
Between
Gladys Boss Shollei
Petitioner
and
Judicial Service Commission
1st Respondent
Hon. Ms. Emily Ominde
2nd Respondent
Ahmednasir Abdullahi
3rd Respondent
Warsame, JA
4th Respondent
Ruling
1. This matter has been brought by the Chief Registrar of the Judiciary contesting the decision of the Judicial Service Commission to send her on compulsory leave on 19th August 2013. She states that this is a violation of her rights under the Constitution and also a contravention of the provisions of the Judicial Service Act, 2011. The Notice of Motion before me seeks, inter alia, the following orders:[2] That pending interparties hearing an order of certiorari do issue to temporarily quash the Respondents’ order of compulsory leave.[3]That pending interparties hearing, a conservatory order reinstating the petitioner to office as existing ante 19th August 2013. [4] That pending interparties hearing, an order of prohibition do issue to prohibit the Respondents from commencing the disciplinary proceedings against the petitioner.
2. As this is an ex-parte application, the Court acts with caution as all the facts may not be before it and in particular where orders of some finality are sought. However, a conservatory order is intended to ensure that the rights and fundamental freedoms of the applicant are not rendered nugatory before the inter partes hearing.
3. In the circumstances, I decline to grant the prayer [2] and [3] of the Motion as these are final orders and it would be proper to hear all the parties before making those orders. However, from the material before the court, I am satisfied that case has been made out to prohibit the Judicial Service Commission from taking disciplinary proceedings against the petitioner so that the matter may be ventilated in court.
4. In the circumstances, I grant the following orders;1)The 1st respondent is restrained by way of a conservatory order from commencing or continuing any disciplinary proceedings against the petitioner pending interparties hearing of the application on 27th August 2013. 2)The Notice of Motion and Petition shall be served forthwith.
DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF AUGUST 2013. D.S. MAJANJAJUDGEMr Kipkorir instructed by KTK Advocates for the petitioner ex-parte.