https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2178

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC PETITION NO E.268 OF 2025** *(Before Hon. Justice Dr. Jacob Gakeri)* **GATHOGO SOGOMO ………………………………………………. PETITIONER** **VERSUS** **JUDICIAL SERVICE COMMISSION ………..………………… RESPONDENT** **JUDGMENT** The gist of the Petition dated 17th December 2025 is that the Petitioner is an employee of the Respondent having been employed a Resident Magistrate on 21st June 2004. That he rose through the ranks, was promoted to the position of Principal Magistrate on 12th November 2018, while serving at Tigania Law Courts. He averred that he was transferred to serve in Mombasa Law Courts in May 2023, where he continues to serve since reporting on 5th June 2023. He added that he was invited to attend a promotional interview on 11th August 2025, for the position of Senior Principal Magistrate. He was on the morning of the interview furnished with his official performance records which indicated an outstanding judicial output. He averred that as per the circular dated 29th July 2025, he was the longest serving judicial officer among those that were interviewed for the position. Save for an interdiction issued on 9th January 2023, and which was dismissed in *limine* on 11th May 2023, he averred that there were no other outstanding complaints or integrity issues communicated to him. He averred that despite the interviewing panel engaging him on his exceptional productivity, he was shocked that he was not shortlisted among the successful candidates. He averred that the omission was not an isolated incident but part of a systemic pattern of exclusion as he had been excluded in the 2023 and 2024 promotional cycles without explanation. Consequently, he wrote to the Respondent seeking written reasons for his non-promotion, his interview scorecard, the panel’s recommendation and relevant minutes and resolutions of the Commission; but the same has been in vain. He averred that the Respondent’s conduct has created a toxic work environment causing him untold anguish, career embarrassment, punctured morale and stagnated his career progression. He noted that despite the refusal to promote him, the Respondent has consistently deployed him to high pressure city-based stations such as Milimani Commercial Court, Makadara Law Courts, and Mombasa Law Courts. He averred that the actions amount to constructive efforts to force his exit in ignominy and a betrayal of the public trust vested on the Respondent under Article 73 of the Constitution. On particulars of contravention, the Petitioner averred that the omission constitutes an adverse administrative action; as the failure to provide reasons contradicted Articles 47(2) and 35 of the Constitution and Section 4(3) of the Fair Administrative Action Act (the FAAA). He termed the failure to provide reasons necessary for appeal or review as violation of section 6 of FAAA, his rights to information, fair labour practices and equality before the law; procedurally unfair, unreasonable, and violation of his legitimate expectation for consideration. He averred that merit-based appointment is constitutional imperative and a foundational principle in public service. He added that the actions further amount to discriminatory treatment in employment. He averred further that the conduct infringes the values and principles enshrined under Articles 10 and 232 of the Constitution. The Petitioner prays for: 1. A declaration that the Respondent’s failure to promote the Petitioner without providing written reasons violates Articles 27, 28, 35, 41, 47, 73 and 232 of the Constitution, Sections 4 and 6 of the Fair Administrative Action Act and Section 4 of the Access to Information Act. 2. A declaration that the Respondent’s conduct constitutes a betrayal of public trust and is inconsistent with Articles 73 and 232 of the Constitution, as held in Waqo v Governor Nairobi City County & 3 others [2025] KEELRC 2944 (KLR). 3. An order of *certiorari* to remove into this Honourable Court and quash the Respondent’s decision contained in its circular dated 16th September 2025 (GS-7), in so far as it omits the Petitioner from promotion. 4. A mandatory order compelling the Respondent to supply the Petitioner within seven (7) days with: 5. Written reasons for his non-promotion; 6. His interview scorecard; 7. The interview panel’s recommendations; and 8. Relevant minutes and resolutions of the Commission. 9. An order compelling the Respondent to reconsider the Petitioner’s promotion in a fair, transparent and procedurally proper manner within sixty (60) days. 10. General damages for the violation of the Petitioner’s constitutional rights in the sum of Kshs. 7,000,000.00 or such higher sum as this Honourable Court deems fit, guided by the award in *Waqo* (paragraphs 12 g-m) 11. Costs of this Petition. By a replying affidavit sworn by Winfridah B. Mokaya, the Secretary JSC and the Chief Registrar of the Judiciary, termed the Petition as devoid of merit, speculative and an abuse of court process as it did not disclose any constitutional or statutory violation of the Petitioner’s rights. The affiant stated that the Petitioner is a Judicial Officer serving as a Principal Magistrate with the judiciary. She stated that the Respondent in undertaking its mandate under Article 172(1a) of the Constitution and Section 32 of the Judicial Service Act, periodically undertakes competitive promotions within the magistracy in enhancing efficiency, effectiveness and service delivery within the judiciary. She stated that the Petitioner was among the officers who qualified for shortlisting to participate in the competitive process. Subsequently, he was invited for an interview which he attended on 11th August 2025. She stated that the interview process is structured in a manner such that each member of the panel independently evaluates and scores each candidate against predetermined suitability parameters. She added that the scores are thereafter collated and averaged and a pre-set cut off is applied. She added that the candidates that attain or exceed the threshold are recommended for promotion, whereas those that did not remain eligible for subsequent cycles. She deposed that the parameters include: the candidate’s performance record, integrity record, knowledge of substantive and procedural law, case management skills, judicial temperament, communication skills, and administrative capacity. She emphasized the existence of parity, objectivity and fairness in the process, noting that all candidates were assessed and scored uniformly. She added that it was within her knowledge that the Petitioner did not attain the overall pass mark. She deposed that shortlisting on its own did not automatically confer a right to promotion as suitability is determined through a comprehensive evaluation, extending beyond performance appraisal scores. She added that the Respondent is required to pay due regard to merit and ability, seniority, experience and official qualifications; and among them, great weight is accorded on merit over seniority. She stated that the criteria applied is in line with Article 232 (1) of the Constitution and thus, not discriminatory. She averred that the allegation on discrimination had not been demonstrated as the Petitioner had not shown how he was treated differently from the other candidates. She added that the Petitioner was not the only candidate who failed to meet the requisite pass mark for promotion as several others were not promoted. On the request for information, she acknowledged that the Petitioner through his advocates wrote to the Respondent on 22nd September 2025 requesting for the information, but while in the process of considering and responding to the request, it was served with the Petition. That vide its letter dated 24th February 2026 the JSC responded communicating the reasons and clarifying to the Petitioner the policy documents guiding human resource administration including promotions. On the request for interview score and evaluation, she stated that the demand for disclosure WAS an attempt to muzzle the freedom of the internal deliberative processes which is impermissible; that the Respondent’s internal deliberations is safeguarded by the Judicial Service Act, which aims at upholding integrity of the selection process; and the request was an effort to overstep and micromanage the Respondent’s internal workings, which is impermissible. She added that the claim for damages is legally untenable as the circular was clear, unequivocal and sufficiently communicated the outcome of the process. She contended that failure to promote does not constitute a breach capable of giving rise to damages. She urged that the Court cannot usurp the mandate of Respondent as it is the only body vested with the mandate constitutionally and statutorily. **Submissions** Counsel for the Petitioner addressed the following issues: (i) Whether this Honourable Court has jurisdiction and the applicable constitutional standard of review; (ii) Whether the Respondent's discretion in promotions is absolute and immune from judicial scrutiny, or whether the Court can intervene to enforce constitutional standards of transparency, accountability, reasons, and non-discrimination; (iii) Whether the Respondent violated the Petitioner's fundamental rights under Articles 10, 27, 28, 35, 41, 47, 73 and 232 of the Constitution, together with the Fair Administrative Action Act, Access to Information Act, and Section 5(3) of the Employment Act; (iv) Whether the Petitioner is entitled to the reliefs sought. On the first issue, reliance was placed on Articles 162(2)(a), 165, 22 and 258 of the Constitution, and the cases of **Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated) [2023] KESC 6 (KLR) (para. 73) and Parliament of Kenya & another v Okoiti & 2 others [2026] KESC 28 (KLR)**among other cases,in arguing that this Court is clothed with requisite jurisdiction. The Court was urged to be guided by precedent and purposive interpretation in coming to a finding. On the second issue, reliance was placed on the decision in **Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others [2014] KECA** *211*, and Articles 10, 27, 35, 41, 47, 73, and 232 of the Constitution to submit that Judicial Officer had no right to promotion but had an absolute right not to be discriminated against, subjected to opaque decision-making, or have his career arbitrarily stagnated. On confidentiality, reliance was placed on the case *of* **Gladys Boss Shollei v JSC [2022] KESC 5, which referred to the case of Simon Rotich Rutto v Judicial Service Commission [2019] eKLR (Petition 48 of 2019).** On the third issue, reliance was placed on Article 47(1) and 2 and doctrine of legitimate expectation. Further reliance was placed on the definition of the word administrative action by the Supreme Court in the case of **Ethics and Anti-Corruption Commission & another v Prof. Tom Ojienda & Associates Advocates & 2 others (Petition No. 30 of 2019 (Consolidated)) [2022] KESC 59 (KLR) (paras. 54–57). It was further submitted that the Court in Waqo v Governor, Nairobi City County & 3 others [2025] KEELRC 2944 (KLR)**at paragraphs 9–10 held that failure to communicate outcomes and provide reasons constituted a gross constitutional and statutory violation attracting strict liability and substantial damages. It was added that by inviting the Petitioner for the interview, the JSC made an express unambiguous promise in line with test established in **Kenya Revenue Authority v Export Trading Company Limited (Petition 20 of 2020) [2022] KESC 31 (KLR).** On discrimination, reliance was placed on the decision in**Susan Khakasa Oyatsi v Judicial Service Commission (Petition E111 of 2021) [2022] KEELRC 3 (KLR).**On damages, it was submitted that the sum of Kshs. 7,000,000.00 was reasonable. The Respondent raised the following issues: (i) Whether the Respondent conducted the promotion exercise lawfully, fairly and in accordance with the Constitution and the Judicial Service Act; (ii) Whether the Petitioner has established discrimination contrary to Article 27 of the Constitution; (iii) Whether the respondent complied with its constitutional and statutory obligations relating to communication of the promotion outcome and the petitioner's request for information; (iv) Whether the Petitioner is entitled to the declaratory, mandatory and compensatory reliefs sought. On the first issue, it was submitted that a lawful promotion exercise must be competitive, merit-based, objective and fair. It was added that the same must evaluate candidates against predetermined criteria, ensure equality of opportunity, accord primacy to merit and suitability, and uphold the constitutional values governing public service. In submitting that the promotion was not automatic, reliance was placed on the decision in **Universities Academic Staff Union (Pwani University Chapter) v Pwani University; Universities Academic Staff Union (Interested Party) [2023] KEELRC 2377 (KLR).**Counsel submitted that the Court had no mandate to interfere with mandate of a constitutional body. It was argued that judicial intervention was only warranted where the impugned decision was tainted by illegality, irrationality, procedural impropriety or other constitutional infirmity. Reliance was placed on the Court of Appeal decision in **Judicial Service Commission v Gladys Boss Shollei & Another [2014] eKLR.** On the second issue, reliance was placed on the decision in **Law Society of Kenya v Attorney General & 2 Others [2016] KEHC 5096 (KLR),**where the Court affirmed the reasoning in**Nyarangi & 3 Others v Attorney General [2008] KLR 688**in submitting that the constitutional inquiry was not whether the Petitioner was treated differently, but whether any alleged differential treatment was founded upon a prohibited ground or was otherwise devoid of any objective and reasonable justification. Counsel submitted that when the Petitioner’s claim was measured against the threshold set in the above case and in **Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] eKLR,** the same fell short, as he failed to demonstrate any unfavorable bias. On the third issue, it was submitted that the allegations were unsupported both in fact and in law. It was urged that although public bodies are under an obligation to communicate administrative decisions and the principal reasons underpinning them, the right of access to information was not absolute and remains subject to the statutory framework enacted by Parliament. It was submitted that the Respondent complied with the constitutional underpinnings by communicating the decision through its circular dated 16th September 2025, which announced the successful candidates. It was added that the Respondent’s letter dated 26th February 2026 expressly informed the Petitioner reason why he was unsuccessful. On the release of the material pertaining to the interview, it was submitted that its disclosure would impede the Commission's internal deliberative processes, inhibit the free and candid assessment of candidates by individual panellists and undermine the independent discharge of the Respondent's constitutional mandate under Article 172 of the Constitution. Counsel submitted that the Petitioner did not approach the review mechanism provided for under Section 14 of the Access to Information Act; which grants a person aggrieved by a decision relating to access to information, including an alleged refusal or partial disclosure, the right to apply for review before the Commission on Administrative Justice. It was submitted that the same was termed as offensive to the doctrine of constitutional avoidance. On the fourth issue, it was submitted that the Petitioner’s entitlement to relief was dependent upon proof of alleged constitutional violations; and not merely due to dissatisfaction with an outcome of an administrative process. It was argued that the reconsideration of the Petitioner’s promotion would amount to an intrusion into the Respondent’s mandate and the declared vacant positions were filled. It was submitted that any order would undermine the finality of a lawfully concluded competitive process and impermissibly interfere with the Respondent's constitutional independence. It was submitted that the claim for Kshs.7,000,000/= is unsustainable as constitutional damages are not awarded as a matter of course but to vindicate established violations of constitutional rights. counsel added that the Petitioner did not suffer any prejudice as he remains a serving Principal Magistrate receiving remuneration, benefits and privileges attached to that office and eligible to compete in future promotion exercises as vacancies arise. The Court was urged to dismiss the Petition with costs. **Analysis and determination** The issues that fall for determination are (i) whether this Court has the jurisdiction to interfere with the decision of the Respondent, (ii) whether the doctrine of constitutional avoidance is applicable, (iii) whether the Petitioner’s rights to access information and equal protection of the law were infringed by the Respondent, (iv) whether Petitioner is entitled to the reliefs sought. The Respondent’s contention is that this Court cannot interfere with its decision making as the same will be contrary to constitutional dictates. In as much as the duty of the Court is not to supervise activities of institutions, the Court in Jackson Butiya vs Eastern Produce Kenya Limited (Industrial Court Cause No 335 of 2011) stated that: *“… It is not the role of the Court to supervise the internal grievance handling processes between employers and employees. The role of the Court is to ensure that such processes are undertaken within the law.” Emphasis supplied.* The Petitioner’s contention is that the process was not open, transparent or fair and therefore calls upon this Court to look into the same and do justice. The Respondent, despite contending that the Petitioner ought to have approached review, added that it would still have not provide the required information, and therefore the same would have been an activity in futility. This Court is therefore invited to scrutinize the legality of the process to ensure that the same was carried out in accordance with the law. It therefore goes without say that this Court possess the requisite jurisdiction to examine the case and make a determination. The Court in **Abdikadir Suleiman v County Government of Isiolo & another [2015] eKLR** upheld its jurisdiction where it held that: That this court enjoys the jurisdiction to hear and determine employment and labour relations matters alongside claims of fundamental rights (and enforcement of constitutional and statutory provisions) ancillary and incidental to those matters was upheld in the ruling delivered by this court on 30.04.2014 in Geoffrey Makana Asanyo –Versus- Nakuru Water and Sanitation Services Company and 6 Others [2014] eKLR. The Court of Appeal held as much in Judicial Service Commission –Versus- Gladys Boss Shollei & Another [2014] eKLR. As stated by the court earlier in this judgment, the original and unlimited jurisdiction to make a finding on legitimacy or lawfulness of decisions in disputes between employers and employees rests with this court as vested with the appropriate jurisdiction under Articles 159(1), 162 (2) (a) as read with Article 165(5) and (6) of the Constitution; Articles 22(1) and 258(1) of the Constitution, and the provisions of the Employment and Labour Relations Act, 2011. The court holds that the jurisdiction spreads to all issues in the employment relationship and related matters including the enforcement of the fundamental rights and freedoms under Article 22 of the Constitution and enforcement of the Constitution under Article 258 as far as the issues in dispute are, evolve, revolve or relate to employment and labour relations. The court holds that the compass or golden test for the court’s jurisdiction is the subject matter in the dispute namely disputes relating to employment and labour relations as provided for Article 162 (a) of the Constitution and as amplified in the Employment and Labour Relations Act, 2011 and not the remedies sought or the procedure of moving the court or the situ of the applicable law or any other extraneous considerations as may be advanced by or for a litigant. From the foregoing, it is clear that Court has jurisdiction to hear an determine this Petition, given the nature of the claim and that the provisions of section 14 of the Access to Information Act are not couched in mandatory terms. That said, the doctrine of exhaustion is inapplicable in this case. The court is guided (as the then was) by reasoning of **Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR** where the judge held as follows: ***“24. At least two principles emerge from our jurisprudence in these cases:- First, while, exceptions to the exhaustion requirement are not clearly delineated, courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies.[17] However, the High Court may, in exceptional circumstances, find that the exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.*** ***…*** ***33. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on constitutional interpretation especially in virgin areas or where an important constitutional value is at stake…*** ***…*** ***35. The second principle suggested by case law for limiting the applicability of the doctrine of exhaustion in appropriate cases is that a statutory provision providing an alternative forum for dispute resolution must be carefully read so as not to oust the jurisdiction of the Court to consider valid grievances from parties who may not have audience before the forum created, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit. The rationale behind this reasoning is that statutory provisions ousting courts jurisdiction must be construed restrictively. This argument was not advanced before me nor do I discern it from the facts of this case.*** ***36. The question that begs for an answer is whether the dispute resolution mechanism established under the Act and the Regulations is competent to resolve the issues raised in this application…”*** On the issue of infringement of rights, the Petitioner claimed that he legitimately expected to be promoted given his performance, seniority and integrity standing, and the failure caused him anguish and lack of morale. Legitimate expectation is an administrative law concept that has been used to confer rights on persons who legitimately expected certain results and obligating administrative bodies to act fairly in the circumstances. In the case of ***Schmidt and Another v. Secretary of State for Home Affairs [1968 S. No. 4261] [1969] 2 Ch. 149*** the court stated: *“The speeches in Ridge v. Baldwin [1964] A.C. 40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say. Thus in In re H.K. (An Infant) [1967] 2 Q.B. 617 a Commonwealth citizen had a right to be admitted to this country if he was (as he claimed to be) under the age of 16. The immigration officers were not satisfied that he was under 16 and refused him admission. Lord Parker C.J., at p. 630, held that, even if they were acting in an administrative capacity, they were under a duty to act fairly - and that meant that they should give the immigrant an opportunity of satisfying them that he was under 16.”* The concept is further expounded in *Halsbury's Laws of England Judicial Review (Volume 61A (2023)) 2. Substantive Grounds for Judicial Review (4) Legitimate Expectation* as follows: *“A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though there is no other legal basis upon which he could claim such treatment1. The expectation may arise either from a representation or promise made by the authority2, including an implied representation3, or from consistent past practice4 or policy5. In all instances the expectation arises by reason of the conduct of the decision-maker6, and is protected by the courts on the basis that principles of fairness, predictability and certainty in administration should not be disregarded and that a legitimate expectation should not be disappointed7.”* For the doctrine of legitimate expectation to apply the expectation must be legitimate and the requisite elements are: 1. An express clear and unambiguous promise 2. The expectation must be reasonable. 3. The representation must be one which it was competent and lawful for the decision maker to make. 4. There cannot be a legitimate expectation against clear provisions of the law or the constitution. In Republic v Kenya Revenue Authority *Ex parte* M-Kope Kenya Ltd the court cited De smith, Woolf & Jowell in Judicial Review of Administrative Action thus: *“A legitimate expectation arises where a person responsible for taking a decision has induced someone a reasonable expectation that he will received or retain a benefit of advantage. It is a basic principal of fairness that legitimate expectation ought not to be thwarted. The protection of legitimate is at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public.”* In the instant petition, the petitioner has not demonstrated that the respondent had made a clear, express and unambiguous promise that he would be promoted after the interview. The fact that he had participated in previous interviews could not avail him in this instance by dint of being a competitive process. In the courts view nothing turns on this issue. The Petitioner contended that he was discriminated against by a biased system where he has been denied promotion not once but twice. The Respondent did not shed any light as to the reasons why the Petitioner has failed the promotional exercise twice. The Petitioner averred that his performance has been nothing but exemplary and as such, the Respondent always deployed him to busy stations and the only consolation offered by the Respondent was that there would be other promotion cycles in the future and that the Petitioner was still on its payroll is unreasoning. The explanation tendered by the Respondent was unreasoning whether the Petitioner’s career will ever grow. Since the petitioner had not allege, that he was interviewed by the same panel of interviewed and did not particularise the alleged discriminatory aspects of the process, it was difficult to discharge the initial burden of proof of a *prima facie* case of discrimination for the burden of disproving discrimination to shift to the Respondent. It behoved the petitioner to prove how the discrimination was manifested. Discrimination is defined as: Differential treatment; especially a failure to treat all persons equally where no reasonable distinction can be made between those forwarded and those not favoured. Under section (5) (7) of the Employment Act: *(7) In any proceedings where a contravention of this section is alleged, the employer shall bear the burden of proving that the discrimination did not take place as alleged, and that the discriminatory act omission is not based on any of the grounds specified in this section.* The petitioner placed no material before the court from which it could discern discrimination. On access to information, other than claiming that the request for disclosure would interfere with its constitutional mandate, the Respondent has not demonstrated how. It is evident that the information sought pertains to the Petitioner only and it is only fair to the Petitioner that the information was availed to him. Article 35 of the Constitution provides for the right of access to information held by the state and information held by person and requested for the exercise or protection of a right and fundamental freedom. Having sought the information in writing, the same ought to have been availed within the confines of reasonable safeguards to protect the interviewing panel, which the petitioner already knows since he faced it during the interview. In the courts view, there is no justifiable reason as to why the Petitioner should not be given the scores he secured in the various aspects of the interview and the total mark vis-à-vis the threshold. The information, may be a useful guide when he is preparing for future interviews. Since the Respondent responded to the petitioner letter requesting for reasons for non-promotion, the declaration sought is unmerited and it is declined. Concerning declaration of betrayal of trust, the Petitioner led no evidence to prove that the Respondent’s conduct demonstrated betrayal of public trust. There was no indication on how different the interviews were from the last two or three and how it prejudiced the petitioner. The relief is declined. Similarly, having found as above, the court is not persuaded that the remedy of *certiorari* is merited. The petitioner tendered no evidence to show that the process of arriving at the circular dated 16th September 2025 was unreasonable, irrational, illegal or procedurally improper to qualify for quashing. As adverted to elsewhere in this judgment the court is satisfied that the petitioner is entitled to the information sought namely: 1. Reason(s) for non-promotion. 2. Interview score card. 3. Panel’s recommendation 4. Respondent’s decisions Based on the evidence on records the court is not persuaded that the Respondent’s conduct was unfair, opaque or procedurally improper towards the petitioner that there is need for the application for promotion to be reconsidered on its own. As no violation of constitutional rights has been demonstrated, the prayer for damages is unsustainable and it is declined. The suit is partially successful to the extent that the Respondent shall furnish the petitioner with the information set out herein above. Parties shall bear their own costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 28TH JULY, 2026.** **DR. JACOB GAKERI** **JUDGE** **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of the **Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **DR. JACOB GAKERI** **JUDGE**