REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT AT NAIROBI
PETITION NUMBER E106 OF 2020

IN THE MATTER OF: DENIAL OF RIGHTS, VIOLATIONS AND INFRINGEMENT OF ARTICLES

10, 22, 28, 41, 47, 48, 50 AND 258 OF THE CONSTITUTION OF KENYA.

AND

IN THE MATTER OF: SECTION 3,4, AND 12 OF THE FAIR ADMINISTRATIVE ACTION ACT NO 4
OF 2015.

AND

IN THE MATTER OF: JUDICIAL SERVICE ACT SECTION 32 AND THE RULES 25 [1-11] OF THE 3RD
SCHEDULE.

AND

IN THE MATTER OF: SECTION 12 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT
NO. 20 OF 2011 AND THE EMPLOYMENT AND LABOUR RELATIONS
COURT [PROCEDURE] RULES.

BETWEEN
HON. PHYLIS LUSIAH SHINYADA ………………………………………….….……. PETITIONER

VERSUS

THE JUDICIAL SERVICE COMMISSION …………………….……………………. RESPONDENT

Rika J
Court Assistant: Emmanuel Kirpono
_____________________________

Okemwa & Company Advocates for the Petitioner

G&A Advocates for the Respondent

_____________________________

1
 JUDGMENT

Petition

1. The Petitioner filed her Petition on 22 nd December 2020.

2. The Petition is based on her Affidavit sworn on 18th November 2020.

3. She explains that she joined the Magistracy under the Judiciary, in the year 2008, rising to
the position of Senior Resident Magistrate, on account of her competence,
professionalism and hard work.

4. She lists her career highlights to include appointment by the Respondent, as Head of Kisii
Children’s Court in 2011; pioneering and heading the 1st Municipal/ County Court in Kisii
County; and being the first Deputy Registrar of the Employment and Labour Relations
Court, Kisumu.

5. She states that, like other Judicial Officers who were appointed before the year 2010, she
was subjected to vetting by the Judges and Magistrates Vetting Board [J.M.V.B], which
cleared her as suitable to continue in service.

6. 5 charges at the J.M.V.B were nonetheless referred to the Respondent, as the J.M.V.B was
found to have no jurisdiction by the Supreme Court, with regard to those charges.

7. The Respondent took cognisance of the matter and charged the Petitioner. There were 5
charges, as originated by the J.M.V.B. The charges are contained in a letter from The Hon.
The Chief Justice to the Petitioner, dated 23rd June 2017. The Petitioner responded to all
the charges, through her Advocates, Otieno Yogo Ojuro & Company, in a letter to the Chief
Justice, dated 1st August 2018.

2
8. She was interdicted on 21st August 2017. She was heard by a Disciplinary Committee of
the Respondent, comprising Hon. Registrar Winfrida Mokaya [secretariat], Hon.
Commissioners Mercy Deche [Chair & Representative at the Respondent, of the Law
Society of Kenya], Emily Ominde [Chief Magistrate, Representing the Magistracy] and
Philomena Mwilu [Deputy Chief Justice, Representing the Supreme Court]. Hon.
Commisioner Aggrey Muchelule [Judge, representing the High Court], is recorded as
having appeared mid-way, and did not participate in the matter [ page 33 of 65 of the
disciplinary proceedings]. 4 of the charges were either withdrawn or dismissed, while 1,
which was charge number 2 at the J.M.V.B, and at the Respondent, was upheld.

9. The charge was: -

‘’ In C.M.C.C. 88 of 2007, Julius M. Ndege v. Hezron O. Nyambane and No. 67 of 2009, you
allegedly issued orders, releasing the Defendant’s motor vehicle to the Plaintiff, contrary to
the orders of Kisii High Court Petition No. 35 of 2010, an act that puts your competence in
question.’’

10. On 27th March 2019, the Respondent informed the Petitioner that the Respondent had
met on 12th March 2019, and deliberated on her case. The Respondent resolved to dismiss
the Petitioner from service, in exercise of its mandate under Article 172 [1] [c] of the
Constitution, and pursuant to Regulation 25 [11], Part IV, 3rd Schedule, of the Judicial
Service Act.

11. The letter, signed by Respondent’s Secretary, Hon. Chief Registrar Judiciary, Anne A.
Amadi, gives the reason for termination of the Petitioner’s service. The reasons are
variously worded as follows: -

 In essence, you failed to perform your duties in an efficient and competent

manner as required by the Judicial Service Code of Conduct and Ethics.

3
  That your conduct goes to the core of your duties as a Judicial Officer and
amounts to dereliction of duty, lack of competence, diligence in discharge of
your duties, and the same amounts to gross misconduct and incompetence.

12. This decision triggered filing of the Petition, through which the Petitioner complains that
her procedural and substantive, constitutional and statutory protections, were denied to
her.

13. The Petitioner explains her role, in Kisii C.M.C.C No. 88 of 2007. She states that she was
administratively assigned the file, after all other Magistrates at the Station recused
themselves. The file was placed before her at execution stage. The motor vehicle
belonging to the Defendant, Complainant before the Respondent, had been attached and
sold to a 3rd Party through a public auction. She could not revert the motor vehicle to the
Complainant through an application. The Petitioner states that failure to grant orders
reverting the motor vehicle to the Complainant, did not mean that justice was lost; the
Complainant could appeal, seek review, or file a Claim for damages against the
Auctioneers.

14. The Petitioner states that in making her ruling in C.M.C.C No. 88 of 2007, dated 30 th
November 2011, she was guided by the pleadings, affidavits, submissions and the law. She
considered and applied 2 decisions of the High Court, Jothan Muiruri Kibaru v. Simon
Towett Maritim [ Civil Case Number 253 of 1996] and Leonard N.K. Moss v. Villa Care
Limited & Another [2005] e-KLR. These decisions persuaded the Petitioner to release the
motor vehicle to the new owner. It was her view that the High Court in the above
decisions, determined that where a property is sold at a public auction, even if there were
irregularities in the attachment and auction process, the sale to the purchaser at a public
auction becomes irreversible. The Complainant had recourse, in damages against the
Auctioneer.

15. The Petitioner states that 3rd Parties had filed Petition No. 35 of 2010 before the High
Court at Kisii. The High Court issued a ruling which the Petitioner submits, did not restrain

4
 her judicial independence, in making her own ruling. No specific orders were served upon
the Petitioner, restraining her judicial discretion.

16. At paragraph 17 of her founding Affidavit, the Petitioner states that she therefore formed
the view, that the adverse decision taken by the Respondent against her was meant to
harass, intimidate, punish and oppress her. The Respondent failed to uphold institutional
independence, and protect the Petitioner’s own independence, as constitutionally
mandated.

17. The Petitioner states that the allegations in the charge sheet, were not investigated and
ascertained. Her ruling could be corrected by the High Court, through an Appeal. Further,
escalation of the charges to the Respondent by the J.M.V.B was done contrary to the
Vetting of Judges and Magistrates [Amendment] Act, 2013.

18. The Respondent is an Independent Commission, and ought to have investigated the
matter, on receiving communication from the J.M.V.B. No investigation was carried out
by the Respondent. A preliminary investigation, before engaging in full investigation, was
an administrative and constitutional imperative. Preliminary investigation ought to have
been carried out by the Judiciary Ombudsman or any other person deputizing the Chief
Justice.

19. Regulation 25 [3] of the 3rd Schedule, Judicial Service Act, was disregarded as there was
no evidence, when the charges were placed before the Respondent’s Committee, from
the Chief Justice. The Respondent ignored Section 6 of the Fair Administrative Action Act,
2015, requiring that the Petitioner is supplied such information as may be necessary, to
facilitate an application for an appeal or review. Violation of any one of the Regulations in
the 3rd Schedule, Judicial Service Act, invalidates subsequent proceedings.

20. The Petitioner submits that the Respondent is not the right forum for debating whether a
Judicial Officer made an erroneous decision. The Respondent’s role is not to interpret and
assign meaning, to decisions made by Judges and Magistrates. She relies on a decision of

5
 the High Court in Apollo Mboya v. Judicial Service Commission & Another; Justice
Kalpana Rawal & 4 [Interested Parties] [2020] e-KLR, where it was held: -
‘’ JSC [Respondent] should avoid complaints which invite it to analyse a Judgment
or Ruling, to determine alleged incompetence of the Judge who authored the
decision.’’

21. The Petitioner holds that she acted in accordance with the Magistrate’s Court Act and
Articles 159] [1] of the Constitution, and could not suffer personal liability for a judicial
act.

22. Upon delivering her ruling subject matter of the disciplinary action, the Complainant
through his Advocate, asked for stay of execution from the Petitioner, a prayer she
granted.

23. The Petitioner underscores that she was guided by the rule of law in making the ruling.
Ownership of the motor vehicle had changed hands, and it could not be reversed through
an application. She reiterates that it was upon the Complainant to pursue general
damages.

24. Judges and Magistrates are fallible, and make errors in the cause of administering justice.
These errors are corrected through the appellate or review system, and the Respondent
is divested from interfering with the decision-making role of the Judges and Magistrates.
The Respondent attacked Petitioner’s judicial discretion. She states that she acted in good
faith at all times, and could not be punished for discharge of her duty, carried out in good
faith. She relies on the decision of the Court of Appeal in Bellevue Development Company
Limited v. Francis Gikonyo & 7 others [2018] e-KLR.

25. The Petitioner further states in her Supporting Affidavit that release of the attached
motor vehicle, was an issue that had been escalated by the Parties to the High Court on
appeal, and therefore to subject her to disciplinary proceedings on the same matter, was
plainly wrong.

6
26. Discharge from service was premature and unreasonable. Judiciary has entrenched
performance management. The Petitioner had benefitted from training and mentorship
from other Judges and Magistrates, and received positive appraisals on performance. She
had authored hundreds of Judgments and Rulings in her career, which did not result in
attacks on her competence. She had been assigned leadership roles within the Judiciary,
based on merit.

27. There was inordinate delay in hearing and concluding her matter. Ruling before the
J.M.V.B was in 2011. Reference to the Respondent was made in June 2015. The matter
was placed before the Chief Justice 2 years later in 2017, and determined by the
Respondent in 2019. It took 4 years for the Respondent to hear and determine the matter.
Between interdiction and dismissal, there was a period of 19 months, which was against
Respondent’s own Policy and the Judiciary Human Resource Manual, capping resolution
of disciplinary cases against Officers at 6 months. In Civil Appeal No. 312 of 2019 before
the Court of Appeal, Judicial Service Commission v. Daniel Mudanyi Ochenja, it was
concluded that such delay offends Article 47 of the Constitution, and the Fair
Administrative Action Act.

28. Reasons wherefore, the Petitioner prays for the following Orders: -
a. A declaration that the action of the Respondent to entertain complaints, to
analyse the merits of the Ruling and Judgments the of Petitioner [and Judicial
Officers] to determine their competence, is unlawful, unfair and unjustified.

b. A declaration that the action of the Respondent against the Petitioner

contravened and was inconsistent with Articles 2[4], 10[2] [a], 27 [1], 28, 41,
47, 73[2], 160 [1] & [5], 172[1] [c] 232[[e] [f], 236[a] and [b] 259[11], and 23[1]
& 25[11] of the 3rd Schedule of the Judicial Service Act and Section 3 [b] of the
Fair Administrative Action Act and outside the Vetting of Judges and
Magistrates [Amendment] Act 2013 [Act No. 43, 2013] Section 3.

7
 c. An order of Judicial Review under Article 23[3] [f] to bring into the Hon. Court
to quash; set aside the charge, proceedings and determination founded on it.

d. Compensation for the [violation] of Petitioner’s rights and freedoms under

Article 27 [1], 28, 41, 47 [1] and 236 [a] and [b].

e. A declaration that the Petitioner, as a Judicial Officer, under Article 159 [1],
160[1] and [5] of the Constitution and Section 45 of the Judicial Service Act,
enjoyed absolute immunity from any form of violation, for actions taken in
good faith, in the performance of her judicial duties.

f. A declaration that under Article 2[4] and 236 [a] [b], the Petitioner is a lawful
and legitimate holder of the rank of Senior Resident Magistrate, and a
mandatory injunction do issue against the Respondent, to unconditionally
reinstate and to deploy her with effect from the date of the Judgment, with all
the back-pay and benefits.

g. Costs and interest.

Response.

29. The Response is contained in a bulky 574-page Replying Affidavit, of the Hon. Chief
Registrar of the Judiciary and Secretary to the Respondent, Anne Amadi, sworn on 9th
February 2021.

30. She states that it is the mandate of the Respondent, under Article 172 of the Constitution
and the Judicial Service Act 2011, to receive complaints against Magistrates and to

8
 discipline Magistrates. In addition to the Act, the Respondent is regulated by its Human
Resource Policies and Procedures Manual. She gives an overview of the Regulations
contained in the 3rd Schedule to the Judicial Service Act, on disciplining of Magistrates.
These Regulations were strictly adhered to, in the process leading to the dismissal of Hon.
Phylis Lusiah Shinyada, the Petitioner herein.

31. She confirms that the Petitioner was a Senior Resident Magistrate employed by the
Judiciary, and worked at Kisii Law Courts at the material time. She was subjected to vetting
by J.M.V.B as stated in her Petition.

32. In Supreme Court decision, Petition No. 29 of 2014, Judges and Magistrates Vetting
Board v. Kenya Magistrates and Judges Association & Another, it was held that J.M.V.B
could only vet Judges and Magistrates who were in office on the effective date [27th
August 2010, when the Constitution was promulgated], for alleged acts or omissions,
arising before the effective date.

33. J.M.V.B therefore set aside its initial determination on unsuitability of 12 out of 26
Magistrates, on the basis that the alleged acts or omissions, over which they had been
found unsuitable to continue serving, related to the period after the effective date.
J.M.V.B did not therefore, have jurisdiction, and referred the complaints and supporting
documents to the Respondent.

34. There were 5 complaints at J.M.V.B made against the Petitioner. In the first complaint,
J.M.V.B made adverse findings against the Petitioner; on the second, similar findings were
made against the Petitioner, who regretted giving orders contrary to what the High Court
had given; on the third, the Petitioner’s conduct was found to have injured the public
image of the Judiciary and again the Petitioner expressed remorse; on the fourth the
Board found that the Petitioner compromised the right of the defendant to a fair trial,
describing her conduct as despicable; and lastly, on the fifth complaint, J.M.V.B again
concluded that the Petitioner had infringed an accused person’s constitutional rights.

9
35. It was not true that J.M.V.B, found the Petitioner suitable to continue serving. It, to the
contrary made adverse findings against the Petitioner on all 5 charges, and declared she
was unsuitable to continue serving. The Chief Registrar exhibits the Determination of the
J.M.V.B in her Affidavit.

36. The Petitioner, alongside other affected Magistrates, applied for review against the
findings of unsuitability. On 25th January 2015, the Board reviewed and set aside its
decision, based on the decision of the Supreme Court, depriving it temporal jurisdiction.
It set aside the decision with a caveat that ‘’ …we wish to stress that had it not been for
the finding of the Supreme Court that our mandate is limited to the conduct before the
effective date, the applications for review may not have succeeded.’’

37. J.M.V.B forwarded the 5 complaints against the Petitioner to the Respondent, through
letters dated 29th June 2016 and 30th June 2016.

38. The Respondent resolved that the complaints are taken through the disciplinary process,
prescribed under 3rd Schedule of the Judicial Service Act.

39. The Chief Justice framed charges, accompanied by statements of the allegations, through
a letter to the Petitioner dated 23rd June 2017. She was invited to respond which she did,
in a letter dated 11th July 2017. She was not condemned unheard. She was availed
opportunity at all material times, to exculpate herself. The charges were detailed, and the
Petitioner never at any one time, sought clarification from the Respondent.

40. In line with Regulation 16 of the 3rd Schedule, the Chief Justice interdicted the Petitioner.
It was resolved that disciplinary proceedings should continue.

41. She was heard before Respondent’s Human Resource and Administration Committee. She
was in the lead up to the hearing, availed witness statements by the Respondent. She
appeared for the hearing, in the company of her Advocate Erick Ojuro, on 26th July 2018.
She was informed at the hearing that charges 1 and 5 had been withdrawn.

10
42. Complainant in the 2nd charge, Hezron Nyambane presented his evidence.

43. Nyambane told the Committee that he was a Defendant in Kisii C.M.C.C No. 88 of 2007.
Julius Ndege was the Plaintiff. The Plaintiff sought damages from the Defendant, following
a traffic accident occasioned by the Plaintiff’s motor vehicle. Judgment was entered for
the Plaintiff for the sum of Kshs. 105,400. Warrants of attachment and sale issued on
execution, against the Defendant’s motor vehicle KAA O41 R. The vehicle was sold, but
sale did not satisfy the decretal sum. The Plaintiff applied to attach and sell another motor
vehicle belonging to the Defendant, a Mitsubishi lorry KAH 242 L.

44. Nyambane applied for stay of execution with regard to the second motor vehicle. Stay
was allowed on the condition that he deposits the remainder of the decretal sum and the
log book in Court. He did so, but the Auctioneer refused to release the lorry. The lorry was
eventually sold by the Auctioneer to Evans Alunga. The Court had, pending litigation,
ordered that the vehicle remains in the custody of the OCS Kisii. Evans Alunga filed a
Petition at the High Court in Kisii, seeking to have the lorry released to him. The High Court
[Musinga J, as he then was] declined the Petition, ruling that the Complainant’s right to
the lorry, ought to have been safeguarded.

45. The Complainant told the Committee that, the Petitioner released the motor vehicle, in
disregard of the ruling of the High Court, and in disregard of the fact that he had met the
conditions given by the Magistrate’s Court on stay of execution - depositing the balance
of the decretal sum and the log book in Court.

46. The Petitioner was granted an opportunity before the Committee to state her position.
She stated that she did not ignore the ruling of the High Court. She observed that the
Auctioneer was not a party to the High Court Petition. She acknowledged the ruling of the
High Court in her own ruling. She told the Committee that the High Court had ruled that
the Auctioneer did not pass a good title to the purchaser. She was not able to give an
answer, when asked what the implication of this finding by the High Court was.

11
47. At the close of the hearing, the Petitioner told the Committee, ‘’ I am ready to be
cautioned and change. Maybe there are mistakes I could have made without knowing,
and I am ready for change.’’

48. She did not at any time during the hearing, complain about the conduct of the
proceedings. The Committee forwarded its Report to the Respondent. The Respondent
deliberated and determined that the Petitioner is dismissed from service. She was
informed of the reasons for the decision. The Respondent observed all the relevant laws
in disciplining the Petitioner, in particular Articles 47 [1], 50 [1] and 236 [b] of the
Constitution

49. There was no obligation on the part of the Respondent, to generate a preliminary report
through the Ombudsman or through any other person deputizing the Chief Justice. The
Chief Justice acted in accordance with the Judicial Service Act.

50. On delay, the Respondent advances the view that the Court should look at the
circumstances which occasioned delay, holistically. The Respondent is a part-time
Commission, with majority of its Members in full-time gainful employment. The
Respondent was in the process of appointing a new Chief Justice, an exercise which
concluded in November 2016. Immediately thereafter, the Respondent commenced the
process of hearing pending disciplinary matters. The Salaries and Remuneration
Commission capped the sittings of the Respondent to 8 per month, which affected the
efficiency of the Respondent. Lastly the Respondent states, delay can be attributed also,
to delay in appointment and swearing of 4 Commissioners, and prolonged litigation
attendant to those appointments. In the circumstances, delay was not unreasonable or
inordinate.

51. The Respondent did not attack Petitioner’s exercise of judicial discretion. In the hearing,
the Committee clarified it was not sitting on appeal against the Petitioner’s ruling, but was
only interested in her conduct and competence. She deliberately undermined the

12
 authority of the High Court, overturning its decision and occasioning injustice to the
Complainant. Standards of judicial efficiency and competence have always been there
from the year 2003, as laid down in the Judicial Service Code of Conduct and Ethics, 2003.
It is ingenious of the Petitioner to allege that Judiciary Performance Management System
was not in place, at the time she was alleged to have displayed incompetence.

52. Article 160 [1] and [5] of the Constitution, only immunizes Judicial Officers for acts done
in good faith and in the lawful performance of their functions. The Article does not
immunize Judicial Officers from disciplinary actions, when their conduct is in question.
The conduct of the Petitioner, in overturning the decision of the High Court, touched on
the conduct and competence of the Petitioner. She disregarded the hierarchy of courts,
which demands that lower jurisdiction is bound by the higher jurisdiction.

53. There was no victimization or discrimination against the Petitioner. The process did not
breach Petitioner’s right to fair labour practices. She was heard and admitted that she
made a ruling contrary to the one made by the High Court. She tried to justify her
departure from the findings and orders of the High Court. She was paid all her terminal
dues. She was advised on her right of review. The Respondent acted fairly, dismissing
other charges against the Petitioner.

54. The Chief Registrar Judiciary and Secretary to the Respondent, holds that the Respondent
discharged its role in accordance with the Constitution, and the Statutes governing its
relationship with the Petitioner. The Petitioner is not entitled to reinstatement,
compensation or any declaratory orders as prayed.

Closing Submissions.

55. The Parties made lengthy Submissions, with overabundance of Judicial Authorities, which
cannot all fit in this Judgment.

13
56. The Petitioner submits, that judicial discretion is at the heart of judicial independence –
SC Petition No. 22 of 2014, Basil Criticos v. Independent Electoral and Boundaries
Commission. There was no evidence that the Petitioner was driven by bad faith in making
her ruling. In SCoK decision, Bellevue Development Company Limited v. Francis Gikonyo
& 7 Others [2020] e-KLR, immunity of Judges and Judicial Officers who discharge their
functions in good faith, was upheld. If there are errors in a Judgment or Ruling, an Appeal
or Review suffices- Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2007]
e-KLR. When a Judge makes a wrong decision, it is described as a ‘mistake of the law’ and
disciplinary proceedings should not be commenced against the Judge or Judicial Officer,
simply because he or she had made a ‘mistake of the law’ – SC of India in Krishna Prasad
Verma [D] Thr. Los. v. The State of Bihar, 26th September 2019. In holding an Employee
accountable for poor performance, the Employer has an obligation to have clear
performance measurement tools in place- Jane Samba Mukala v. Ol Tukai Lodge Limited,
Industrial Court Cause Number 823 of 2010.

57. It is submitted further for the Petitioner, that the Chief Justice was under legal obligation
to investigate the complaints against the Petitioner, before referring them to the
Respondent, and failure to investigate was a violation of Article 47[1] of the Constitution
– Timothy Nchoe Sironka v Judicial Service Commission [2020] e-KLR.

58. On remedies, the Petitioner submits that she is entitled to the declaratory orders, as well
as reinstatement and compensation. In Court of Appeal decision, Judicial Service
Commission v. Daniel Mudanyi, Appeal No. 312 of 2019, the Court of Appeal was critical
of the E&LRC for awarding an order of reinstatement, without compensation.
Compensation alone is insufficient and Courts must not shy away from reinstating Public
Service Employees, who have been subjected to unfair and unlawful termination, and who
are ready to continue serving – Uganda SC, Omunyokol v. Attorney-General, Civil Appeal
No. 06 of 2012, UGSC 4 [8th April 2015] and Kenya Court of Appeal in Judicial Service
Commission v. Lucy Muthoni Njora [2021] e-KLR.

14
59. The Petitioner lastly submits that, the Respondent’s Committee which heard her, was not
properly constituted, having had 3 female Commissioners in contravention of Section
32[1] of the Judicial Service Act.

60. The Respondent submits that the Petitioner has failed to particularize the manner of
constitutional infringement, under Anarita Karimi Njeru v. The Republic [No. 1] [1979] e-
KLR. The jurisdiction of the Court is limited to interrogation of the process, not the
substance of the disciplinary proceedings – Judicial Service Commission v. Gladys Boss
Shollei & Another [2014] e-KLR and Suchan Investments Limited v. The Ministry of
National Heritage & Culture, & 3 Others [2016] e-KLR. In the former decision, it was the
holding of the Court that an Employer must of necessity have control over its Officers, and
the operations of its establishment. Courts only interfere with decisions of Administrators,
if those decisions are outside the band of reasonableness – Republic v. Public
Procurement Administrative Review Board & 3 Others [2017[ e-KLR.

61. The Respondent agrees that Judges and Judicial Officers have judicial discretion in
decision-making, citing Mbogo v. Shah [1968] EA. The Respondent did not purport to
exercise supervisory role over the Petitioner and did not interfere with her discretion. The
issue of judicial competence goes to the root of disciplinary mandate of the Respondent,
bearing in mind the sensitive dockets held by Judges and Judicial Officers. The Petitioner
was accorded fair hearing, as defined in Republic v. Commission of Administrative Justice
ex parte Stephen Githaiga Mwangi [ 2017] e-KLR: Petitioner was notified of the charges
against her; she had particulars of the charges; and was aware of the nature of the case
against her. On delay, the Respondent reiterates that what is expeditious and efficient, is
a matter to be determined by reasonably balancing all the surrounding circumstances-
Judicial Service Commission v. Davis Gitonga Karani [ 2020] e-KLR. In the Court of Appeal
and Supreme Court of Kenya decisions involving Judges Francis Gikonyo and Charles
Kariuki [citation above], judicial immunity was affirmed, but only in cases where judicial
function has been carried out in good faith and lawfully. Good faith, was defined to include
honesty in belief or purpose; faithfulness to one’s duty or obligation; observance of
reasonable commercial standards of fair dealing in a given trade or business; or absence

15
 of intent to defraud, or to seek unconscionable advantage. The Petitioner demonstrated
incompetence in disregarding the ruling of the High Court. The Respondent submits that
the Petition is a thinly veiled attempt, to find solace in constitutional edicts. Independence
on the part of the Judge is not absolute. He /She can be brought to account for
impropriety, misconduct, breach of ethics, arbitrariness, corruption, malice or acting
without reasonable and probable cause- Dennis Mogambi Mong’are v. The Attorney-
General & 3 Others [2014] e-KLR.

62. On the remedy of reinstatement, the Respondent relies on Kenya Airways Limited v.
Aviation & Allied Workers Union [K] [2014] e-KLR, proposing that reinstatement should
only be granted sparingly. The Petition is unmerited and should be dismissed with costs
to the Respondent.

63. Hearing of the Petition was through written submissions, which the Parties confirmed to
have filed and exchanged, on 10th June 2021, and 1st October 2021 when the matter lastly
came before the Court for mention. Judgment was reserved for 16th December 2021, but
is ready for delivery on the date indicated at the end of the Judgment.

Issues

64. The issues as crafted by the Parties and understood by the Court, may be summarized
as: -

 Whether the procedure in discharging the Petitioner from judicial service was
procedurally lawful and fair.

 Whether the Respondent established valid reason or reasons, to warrant discharge

of the Petitioner from judicial service.

 Whether the Petitioner merits the remedies contained in her Petition.

16
The Court Finds: -

65. The terms ‘Judge’ and ‘Judicial Officer’ have been used together in this Judgment. Most
of the principles under discussion, involve Judges and Magistrates. Confusion of terms
‘Judge’ and ‘Judicial Officer’ is occasioned by Article 260, defining ‘Judicial Officer’ to mean
Registrar, Deputy Registrar, Magistrate, Kadhi or a Presiding Officer of a Court established
under Article 169 [1]. It excludes Judges. A more sensible definition, is in the Judicial
Service Code of Conduct and Ethics, Legal Notice Number 50 of 2003, which states,
‘’Judicial Officer, shall mean and include any Judge, Magistrate, Registrar or Kadhi of all
grades, employed in the Judicial Service of Kenya. ‘’ Courts, including the Supreme Court
of Kenya in Bellevue Development Company Ltd. v. Francis Gikonyo & 3 Others [2020]
e-KLR, have been compelled to explain in matters involving Judicial Officers that ‘’ we shall
in this Judgment use the terms ‘Judges’ and ‘Judicial Officers’ interchangeably. ‘’

Procedure.

66. The complaints against the Hon. Shinyada, the Petitioner herein, originated from the
Judges and Magistrates Vetting Board. She holds that the Board cleared her, finding she
was suitable to continue serving. She complains that, the Board acted outside its mandate
in referring the same complaints to the Respondent.

67. The Respondent explains that the Board found the Petitioner culpable on the 5 complaints
before it, and declared her unsuitable to serve. The jurisdiction of the Board was
challenged at the High Court, Court of Appeal and eventually at the Supreme Court of
Kenya, in Petition No. 29 of 2014, Judges and Magistrates Vetting Board v. Kenya
Magistrates and Judges Association & Another. The Supreme Court endorsed the
decisions of both Courts below it, which was that the Board could only deal with Judges
and Magistrates, who were in office at the time the Constitution was promulgated, 27 th
August 2010, for acts or omissions arising before the effective date, not after this date.

17
68. The complaints against the Petitioner and some other Magistrates arose after the
effective date, and the Board did not have temporal jurisdiction over the complaints. But
the Board had already made its determination, declaring the Petitioner unsuitable. She
and her colleagues sought review from the Board, after the Supreme Court rendered its
decision. The Board had no option but to review its determination on unsuitability, and
ultimately refer the complaints to the Respondent.

69. In the view of the Court, it is purposeless for the Petitioner and the Respondent to spend
considerable time, arguing on findings of suitability or unsuitability, made by the Board.
The process and the outcome before the Board was a nullity and void ab initio for want of
jurisdiction. Proceedings before the Board can only add a historical value to the dispute.

70. In Joseph Oginga Onyoni & 2 Others v. The Attorney-General & 2 Others [2016] e-KLR,
the Court restated the principle that decisions made by adjudicatory bodies, without the
requisite mandate, or in excess of mandate, are null and void ab initio.

71. The determination of the Board was void, and in law a nullity. In Macfoy v. United African
Co. Ltd [1961] 3 ALL ER, 1169, Lord Denning held that ‘’ if an act is void, it is a nullity in
law. It is not only bad, but incurably bad. There is no need for an order of the court to
set it aside. It is automatically null and void, without much ado, though it is sometimes
convenient to have the court declare it to be so. ‘’

72. The determination of the Board, for or against the Petitioner is therefore unhelpful, in
determination of this Petition. It was a nullity. It was pointless for the Board to give a
caveat on review, about the chances of success of the application, had the Supreme Court
not found it did not have jurisdiction. Its decision was null and void ab initio, and was only
reviewed and declared null and void, as a matter of convenience.

73. Was the Respondent wrong therefore, in founding the charges against the Petitioner,
from the communication made by the Board?

18
74. The Court does not think so. The process before the Board was different from the process
overseen by the Respondent, under the Judicial Service Act. The fact that the Board was
found to have no jurisdiction, did not bar the Board from communicating the complaints
against the Petitioner to the Respondent. It was not exercising its jurisdiction in
communicating with the Respondent. Once the Respondent received the complaints, it
was at liberty to ignore or act on them.

75. Article 172 [1] [c] of the Constitution mandates the Respondent, among other things, to
receive complaints against, investigate and remove from office or otherwise discipline
Magistrates and other Judicial Officers and Staff. The source of the complaints is
unrestricted. Complaints can be originated by whistle-blowers, individuals or institutions.
This mandate is legislated under Section 32 of the Judicial Service Act and the 3rd Schedule.

76. The record from the Board was communicated to the Chief Justice. Upon receipt, the Chief
Justice was required to make such enquiry as he deemed fit, under Regulation 25 of the
3rd Schedule. If the Chief Justice is satisfied that the complaint would, if proved result in
dismissal, he is required to frame charges against the Officer, and shall forward a
statement of the allegations to the Officer, inviting the Officer to give an exculpation.

77. This procedure was met, as evinced in the letter of the Chief Justice David K. Maraga to
the Petitioner, dated 23rd June 2017.

78. 5 charges were communicated by the Chief Justice to the Petitioner. They were, as had
been drawn and presented to the Petitioner, at the J.M.V.B. The Petitioner was well-
acquainted with the details of the charges, right from the doomed proceedings, before
this Board.

79. In fact, at paragraph 37 of her Supporting Affidavit, she states, she was the one who
compiled the proceedings and ruling in the case at Kisii over which she was being
disciplined. The issues she faced, were about those proceedings and ruling. The Court
would agree that the Chief Justice, like any other Administrator, is required under the

19
 Judicial Service Act and the Fair Administrative Action Act, to investigate complaints
before interdicting an Officer. Regulation 25 [1] of the 3rd Schedule refers to an inquiry by
the Chief Justice. That inquiry or investigation, ought to be available to an accused Officer
in form of a written report, particularly if the Officer has asked for it, before attending the
disciplinary forum.

80. The Petitioner has not however, demonstrated that in light of the records from the
J.M.V.B and the nature of the charges relating to the proceedings and ruling she was
involved in at Kisii, which she herself compiled to the benefit of the Respondent, that the
absence of an investigation report by the Chief Justice, before interdiction, was prejudicial
to her. What was to be investigated? The facts were quite narrow, based on proceedings
and rulings of the Petitioner and the High Court, at Kisii. There was no dispute about
delivery of the rulings or their contents. The Court does not therefore think that the
Claimant was denied procedural justice, by the Chief Justice not conducting any recorded
inquiry, before interdiction.

81. The Petitioner responded to each of the 5 charges, in her letter to the Chief Justice, dated
11th July 2017. There was no disputation of the facts in her response. The dispute was
about her understanding of the law, and application of the law to the uncontested facts.
There is no purpose served in fact-finding, where the facts are not disputed.

82. The Chief Justice interdicted the Petitioner in his letter dated 21 st August 2017, citing
Regulation 16 of the 3rd Schedule.

83. It was considered that the Petitioner did not exculpate herself, and the Respondent was
tasked to commence disciplinary proceedings against the Petitioner.

84. The Petitioner subsequently appeared before the Disciplinary Committee on 26th July
2018. She was represented by an Advocate, Mr. Ojuro. Witness statements had been
availed to the Petitioner before the hearing.

20
85. The 5 charges were read to her. She denied all of them. She was informed by the Chair,
Mercy Deche, that the 1st charge had been withdrawn. The 5th charge, presented by an
Advocate of the High Court of Kenya, was similarly withdrawn. She was to defend 2nd, 3rd
and 4th charges. Witnesses presented their evidence and the opportunity to cross-
examine was availed. The Petitioner gave her own evidence. She was advised on her right
to call witnesses. Her Advocate was by her side throughout. 3rd and 4th charges were
dismissed by the Committee, while the 2 nd was upheld, leading to the dismissal letter of
27th March 2019.

86. The Petitioner challenges the constitution of the Disciplinary Committee, submitting that
the panellists were from the same gender, contrary to the Judicial Service Act. This
submission was made belatedly, and does not seem to have given the Respondent an
opportunity to respond on the particular subject. It is irregular to raise fresh issues, in final
submissions.

87. Section 32 of the Judicial Service Act, states that for purposes of appointment, discipline
and removal of Judicial Officers and Staff, the Respondent shall constitute a Committee
or Panel which shall be gender-representative. The Petitioner complains that she was
heard by 3 Ladies- Hon. DCJ Philomena Mwilu, Hon. Emily Ominde and Hon. Chair, Mercy
Deche.

88. The record indicates that Hon. Judge Muchelule joined the proceedings midway. It was
made clear by the Chair, that he would not participate. In the view of the Court, he was
not therefore part of the Committee that heard the Petitioner. It is not clear why, the Hon.
Commissioner attended proceedings he did not have an active role in.

89. Hearing of disciplinary proceedings is governed by Regulation 25 of the 3rd Schedule.

Section 32, Judicial Service Act, is on appointment of the Committee, which in the
understanding of the Court, is the Human Resource and Administration Committee of the
Respondent. This is a Standing Committee, appointed to among other human resource

21
 functions, administer discipline. It is this Committee, under Section 32 of the Judicial
Service Act, which is required to reflect gender balance.

90. Regulation 25 [3] requires that the Respondent appoints at least 3 persons, presumably
from the Committee appointed under Section 32, for purposes of the actual disciplinary
hearing. The Regulation does not require gender balance in the 3-person Committee. The
Chief Justice shall not be a member of this Committee. Judges who are members of the
Respondent under the Constitution, are allowed to sit in the Committee.

91. The Committee which heard the Petitioner was properly constituted. There were 3
persons. There was no gender ratio required in the composition of the Disciplinary
Committee. They were only required to be 3 persons. It did not matter if they were all
female, male or transgender. The Petitioner’s challenge on composition of the Disciplinary
Committee has no merit and is declined.

92. There admittedly, was delay in hearing the Petitioner. The actual hearing took 19 months,
against the fair standard of 6 months, adopted by the Respondent in its own human
resource policy. The Respondent submits that, there were internal and external
challenges, affecting its ability to conclude disciplinary proceedings within the desired 6
months. It was involved in appointment of a new Chief Justice; appointment and swearing
in of new Commissioners was under legal challenge; the Commissioners are part-timers
at the Respondent, while fully employed elsewhere; and sittings of the Respondent had
been reduced to a maximum of 8, in a month, by the Salaries and Remuneration
Commission.

93. The Court is persuaded that delay was in the circumstances, not unreasonable. The
Respondent demonstrated there were external and internal factors, beyond its control,
militating against a timeous disposal of the complaints against the Petitioner. The record
indicates, she was granted a hearing as soon as these impediments receded. Delay on its
own, cannot in the view of the Court, be interpreted as an abridgment of the Petitioner’s
Article 47 rights. It would serve the Respondent well however, to relook at its policy on

22
 the reasonable period it is likely to take, in hearing and expeditiously disposing of
disciplinary cases. There are many cases against the Respondent, brought by Judicial
Servants, coming before this Court, where delay is always shown to be present.

94. There was no significant breach of fair procedure, under the Judicial Service Act, the Fair
Administrative Action Act and the Employment Act.

Valid Reason or Reasons.

95. The Respondent submits that Courts are limited to review of administrative processes,
and not the substantive reasons given by Administrators, in making their decisions. The
Respondent anchors this argument on Sucham Investments Ltd. v. Ministry of National
Heritage & Culture & 3 Others [2016] e-KLR.

96. The Employment Act requires that Employers meet procedural, as well as substantive
standards of fairness, in termination of Employees’ contracts, under sections 41, 43, 45
and 47[5]. The Court, in looking into fairness of Employers’ decisions, is mandated to look
at the procedure, as well as the reason or reasons, given by the Employer, in justifying
termination.

97. Section 4[2] of the Fair Administrative Action Act, imposes an obligation on Administrators
to give written reasons for their decisions. Section 6[2] of the Act, allows every person,
affected materially or adversely by any administrative action, to be supplied with written
reasons for the administrative action. The preceding Section 5 [2] [b] and [c], allows
affected person to apply for review of an administrative action or decision, by a Court of
competent jurisdiction in exercise of his or her right, under the Constitution or any written
law, and to pursue such remedies as may be available under the law. Failure by an
Administrator to supply reasons for the decision, in the absence of proof to the contrary,
leads to a presumption that the decision was made without good reason.

23
98. Regulation 24 of the 3rd Schedule to the Judicial Service Act, requires the Respondent to
supply the affected Officer with findings on every charge. Reasons must be given.

99. Decisions of Administrators are therefore challengeable in Court on procedural and

substantive grounds. It would be absurd for the Court to be limited to review of the
procedure alone. The reasons justifying the decision, are oftentimes, the centrepiece of
judicial intervention in administrative actions, and in particular actions terminating an
Employee’s contract of service. Administrators are required to give reasons for their
decisions, so that the persons dissatisfied with those reasons, are able to challenge those
reasons in Court, on review or appeal. When Courts review decisions of Administrators
substantively, they are simply enforcing the mandate of the Administrators, established
by legislation. There is no reason to hold that the role of the Court is limited to
interrogation of the process leading to termination, as urged by the Respondent. The
authority of the Administrator is not absolute, and rule of law and good administration
concerns, ensure that the reasonableness of administrative decision is policed by the
Courts.

100. Substantive review by Courts, based on rule of law concerns, and the principle of
fairness inherent in our constitutional order, has been upheld by Courts in English
decisions, A. v. Criminal Injuries Compensation Board [1999] 2 A.C. 330 and E. v.
Secretary of State for the Home Department 2 A.C. 330.

101. The charge over which the Petitioner was dismissed, was charge number 2, which is
worth repeating here. It reads:

‘’ That in [Kisii] C.M.C.C No. 88 of 2007, Julius M. Ndege v. Hezron O. Nyambane and No. 67
of 2009, you allegedly issued order releasing the Defendant’s motor vehicle to the Plaintiff,
contrary to the orders of Kisii High Court Petition No. 35 of 2010, an act that puts your
competence into question.’’

102. The Petitioner was therefore charged with lack of competence in discharge of her role
as a Senior Resident Magistrate, Kisii Law Courts.

24
103. In examining whether the Petitioner was incompetent, the Court must carefully look
into the proceedings before the Petitioner, her ruling which led to dismissal from judicial
service, and the ruling of the High Court which she was said in the charge sheet above, to
have defied and released the motor vehicle to the Plaintiff. Focus must throughout, be
placed on the concept of judicial incompetence. It was the sole judicial offence, over
which the Petitioner was charged, heard and dismissed from service.

104. In summary, the Complainant Hezron Otochi Nyambane, was sued by Julius Momanyi
Ndege in C.M.C.C No. 88 of 2007. The Complainant’s motor vehicle KAA 041 R was
involved in an accident with the Plaintiff’s motor vehicle. Judgment was entered in favour
of the Plaintiff for the sum of Kshs. 105,640.

105. The Complainant failed to satisfy decree and his motor vehicle KAA 041 R was attached
and sold in execution. The decretal sum was not satisfied and the Plaintiff applied for
attachment and sale of a second motor vehicle belonging to the Complainant, a lorry KAH
242 L.

106. The Complainant applied and obtained orders ex parte on 2nd June 2009 for release of
the attached lorry. The Plaintiff immediately applied for ex parte orders releasing the
lorry, to be stayed. The orders for release were stayed, on 3rd June 2009, a day after
release orders issued.

107. The proceedings up to this stage, were before other Magistrates, not the Petitioner.

108. On 17th June 2009, the Complainant applied to have the lorry released, and was
granted the orders, on the condition that he deposited the logbook and the balance of
the decretal sum in Court. Between 3rd June 2009 and 17th June 2009, there were no
orders in force, against attachment and sale of the lorry, which was in the custody of the
Auctioneer. The Complainant complied with the orders of the Court of 17th June 2009, by
making the deposit on 23rd June 2009.

25
109. While this was going on, the Auctioneer had already sold the lorry through a public
auction, on 5th June 2009, to Patrice Mulei Alunga at Kshs. 480,000.

110. The record shows sale took place before the Complainant obtained orders to deposit
the logbook and the balance of the decretal sum in Court. It took place on 5 th June 2009,
while there were no orders of stay of execution of any nature, in force. The Petitioner,
was not the Magistrate involved with the execution dispute, up to this point.

111. On 25th June 2009, the Purchaser Patrice Mulei Alunga filed an ex parte Miscellaneous
Application No. 67 of 2009, where he obtained orders vesting the lorry in his name. He
proceeded to have the lorry transferred and registered in his name.

112. Although Miscellaneous Application No. 67 of 2009, is mentioned in the charge sheet
drawn by the Chief Justice above, the Miscellaneous Application was not before the
Petitioner, and it was not the Petitioner who issued the vesting order. It is not clear from
the record, in what way Miscellaneous Application No. 67 of 2009 implicated the
Petitioner of the charge of incompetence.

113. To complicate matters, the lorry was further sold by Patrice Mulei Alunga to Evans
Angoke Alunga.

114. Evans Angoke Alunga proceeded to the High Court at Kisii in Petition No. 35 of 2010,
while the execution dispute was raging before the Magistrate’s Court. The lorry had been
seized by Police at Migori, acting on an order of another Magistrate, ostensibly on the
ground that ownership of the lorry was still under litigation. Evans Angoke Alunga,
therefore sought protection from the High Court, asking the Court to declare that seizure
of his lorry contravened his property rights under the Constitution, and an order for
release of the lorry to him.

26
115. At this point, the Petitioner had not yet been drawn into the muddle of these
proceedings.

116. On 7th July 2009, the Complainant had filed another Application before the
Magistrate’s Court, seeking orders that: Miscellaneous Application No. 67 of 2009 is
consolidated with C.M.C.C No. 88 of 2007; purported sale of the lorry by the Auctioneer
is declared null and void; the vesting order is reviewed; and the lorry released to the
Complainant forthwith.

117. This Application was pending hearing, at the time the High Court heard Petition No.
35 of 2010. It is mentioned in the ruling of the High Court. The ruling was made by Hon.
Resident Magistrate Njeri Thuku, on 1st October 2010. She struck out the Application, on
the ground that it was not properly before her. The Complainant was placed at liberty by
the Court, to file his Application afresh.

118. Hon. Justice Musinga had delivered his ruling on 2nd July 2010. The Judge stated that,
he was unable to grant prayers [a] [b] and [c] of the Petition, which were: declaration that
seizure of the lorry contravened the Petitioner’s property rights; that the lorry is released
to the Petitioner; and that the Petitioner was entitled to damages for violation of his
constitutional right. There was no order adjudicating the ownership of the lorry, simply
because the execution dispute was not yet before the Hon. Judge. There was no order
directed at the Magistrate’s Court not to deal with the execution dispute, or refer the
same to the High Court. The High Court ruling dismissed the Petition by Evans Angoke
Alunga, and no more.

119. The High Court did however, express its opinion on the ownership, remarks which
were interpreted by the Respondent as comprising a conclusive decision on possession
and ownership of the lorry. The High Court stated that the Auctioneer did not pass a good
title to Patrice Mulei Alunga, because sale had been stayed by an order of the Court. The
High Court stated that at the time the Plaintiff obtained the orders reversing the orders
made in favour of the Complainant for release of the lorry, release orders to the

27
 Complainant had not been vacated, but merely stayed. Does not stay of execution of
orders, mean they are not in force? Was the Plaintiff to assume the orders were still in
force, and halt further execution of his Judgment?

120. The ruling by Hon. Justice Musinga was the subject of a Review Application made by
Evans Angoke Alunga. There was a ruling on Review, which has not been highlighted by
either of the Parties in this Petition. The ruling by Hon. Justice Makhandia, according to
the statement of witness filed by the Complainant dated 24th March 2018, emphasized
the need for the execution suit to be heard and determined by the Magistrate’s Court
which had issued the decree.

121. What was the Petitioner’s role in all this?

122. The Petitioner appears to have become seized of the matter from 29th August 2011.

123. The Complainant renewed his Application which had been struck out on 1st October
2010 by Hon. Njeri Thuku. The renewed Application is dated 4th October 2010. It was
argued before the Petitioner.

124. It is important to look at the steps taken by the Petitioner in dealing with the
Application, in relation to the charge of incompetence.

125. She gave directions that the Application, is treated as a suit under Section 34 [2] of the
Civil Procedure Act. All interested Parties were involved. The Auctioneer who was not at
the High Court, and who was central to the entire attachment and sale transaction, was
now involved in this suit before the Petitioner.

126. Section 34 [2] of the Civil Procedure Act, states that ‘’all questions arising between
the Parties to the suit in which decree was passed, or their representatives, and relating
to execution, discharge or satisfaction of the decree, shall be determined by the Court
executing the decree and not by a separate suit.’’

28
127. It must be underscored that disputes on execution under the above law, must be
heard by the Court executing decree, and not by any other Court. In South Nyanza v.
Alfred Sagwa Mdeizi t/a Pave Auctioneers [who was also the Auctioneer in the
Application before the Petitioner], [2010] e-KLR, the High Court held that Section 34 of
the Civil Procedure Act, strictly bars filing of separate proceedings, to determine issues
that emanate or arise from execution of decrees in a suit. This was the holding also in
Supreme Court of Uganda in Simba [K] Ltd. & Others v. UBC [SCCA No. 03 of 2014], with
respect to the Ugandan Civil Procedure Act, Section 34, which is similar to the Kenyan law.
It was therefore for the Petitioner, to determine who were the rightful Parties before her,
and demarcate their respective rights and liabilities under the execution suit.

128. She proceeded to hear all the Parties, including the Auctioneer who was not at the
High Court. There was information supplied by the Auctioneer in particular, which does
not seem to have been available at the High Court.

129. The Petitioner, upon hearing and evaluating the arguments made by all the Parties,
exercising her undoubted, exclusive jurisdiction, under Section 34[2] of the Civil
Procedure Act, wrote her reasoned ruling, dismissing the Complainant’s Application and
releasing the lorry to Evans Angoke Alunga. The lorry was not released to the Plaintiff as
stated in the charge sheet drawn by the Chief Justice. It was released to the 2 nd purchaser,
Evans Angoke Alunga.

130. The Petitioner considered the decision of the Kisii High Court in Petition No. 35 of
2010, and also considered two other decisions of the High Court, which were at odds with
the opinion of the High Court in Petition 35 of 2010. She was cautious, to respectfully
observe, that she did not wish to appear to be faulting the finding of the Judge in the
Petition. In Nairobi High Court Miscellaneous Civil Application, No. 172 of 2004 at
Nakuru, Simon Towett Maritim v. Jotham Muiruri Kibaru and Nairobi H.C.C.C No. 369 of
2005, Leonard K. Moss v. Villa Care Limited & Another, the High Court stated that even
if there were infirmities in the attachment and sale process, the property, having been

29
 sold at a public auction could not be reversed, and the Applicant could only pursue
damages under Section 26 of the Auctioneers Act. She dismissed the Complainant’s
Application and directed that the vehicle is released to the 4th Interested Party, Evans
Angoke Alunga. It is the finding of the Court that the Petitioner exercised her discretion
judiciously; she was mandated to evaluate evidence and make an independent
determination under Section 34 [2] of the Civil Procedure Act; the ruling of the High Court
in Petition No. 35 of 2010 did not bar the Petitioner, from free exercise of civil mandate;
the High Court was not seized of the execution suit under Section 34 [2] of the Civil
Procedure Act; the decree was not a decree issued by the High Court; the High Court had
in the Petition emphasized the importance to have the execution suit disposed of in the
Court which issued decree; and the Petitioner’s ruling disclosed no grounds to conclude
that she did not demonstrate judicial competence.

131. The last proceedings the Petitioner conducted after her ruling are critical in examining
her competence. On 12th December 2011, the Complainant’s Advocate appeared before
her, with an Application for leave to appeal the ruling. She certified the Complainant’s
Application urgent, and granted the Application as prayed. She also ordered that the
proceedings be typed, and supplied to the Complainant.

132. The complainant appealed the ruling, in Kisii High Court Civil Appeal No. 258 of
2011. The record indicates other Appeals by rival Parties, on rulings made by various
Magistrates in the matter, were to be filed at the High Court. How was the appellate
jurisdiction going to deal with these Appeals, if the ruling of the High Court in the Petition,
was conclusive?

133. Was there judicial incompetence on the part of the Petitioner? It is difficult to see
what aspect of the proceedings before the Petitioner, was handled without deference to
legal professionalism, knowledge, diligence and judicial competence.

134. The High Court in Petition 35 of 2010, did not bind the Petitioner to rule in favour of
the Complainant. The High Court stated that the Complainant’s interest should have been

30
 safeguarded, as his right to the lorry was still subject of court proceedings. The High Court
on review by the Petitioner [Evans], ruled that it was essential to have the execution suit
heard before the Magistrate’s Court. At no time did any Judge of the High Court, hear and
determine the execution suit. The execution suit was heard eventually, and culminated in
the ruling by the Petitioner. Proceedings that were pending before the Magistrate’s Court,
ended in the suit that was heard by the Petitioner, under Section 34[2] of the Civil
Procedure Act. The High Court gave an opinion while dismissing the Petition, that the right
of the Complainant ought to have been protected, pending determination of proceedings.
The lorry was preserved at the Police Station, pending determination of the competing
claims, to its ownership and possession. The Petitioner resolved these rival claims in
accordance with the law, and her understanding of the law. There was no declaration by
the High Court, that the Complainant should eventually be found to be the rightful owner
of the lorry, or that the lorry should eventually be released to him. He was a Judgment-
Debtor who had failed to meet a Judgment issued regularly by the Court, and who
deposited security in Court at the 13th hour, when his property had already been sold.

135. It was completely contrary to the law, to conclude as did the Respondent, that the
Petitioner overturned the decision of the High Court. There was no decision determining
ownership in favour of the Complainant, or directing that the lorry held at the Police
Station, should eventually be released to him.

136. The Petitioner’s competence was also attacked on the ground that she ordered
release of the lorry while there was an order of stay of execution in place.

137. But the record shows the lorry had already been sold, vesting order issued, and
logbook transferred, at the time the Petitioner became seized of the matter. Deposit of
the logbook and balance of the decretal sum, was made after sale had taken place.

138. The proceedings before the Petitioner do not reveal that she was incompetent.

31
139. What is judicial incompetence, and how have Courts applied the concept, in removal
of Judicial Officers?

140. The Court has not come across decisions of Superior Courts in Kenya, dealing with
removal of Judicial Officers, solely on the basis of incompetence.

141. The Supreme Court of Missouri, In re Baber 847 S.W. 2d 800 [Mo. 1993] decided on
23rd March 1993, dealt with the removal from office, of a veteran Associate Circuit Judge
of 21 years, Floyd R. Baber.

142. It was observed In re Baber, that there were no prior decisions from the Courts,
contemplating imposition of judicial discipline, solely on the basis of incompetence. This
observation is not dissimilar to the present position in Kenya. The Missouri Court held that
‘’ intelligence, ability and diligence are minimum qualifications, expected of every
Judge.’’ Lack of these qualities constitutes incompetence. The Constitution of Kenya
recognizes these qualities right from appointment of Judges, under Article 166 of the
Constitution [prerequisites], to their removal under Article 168 [grounds for removal].
Incompetence is one of the grounds warranting removal of a Judge from office. This
ground is separate from gross misconduct or misbehaviour. The principles on judicial
competence and conduct, applicable to Judges, extend to Magistrates. Regulation 12 [3]
[d] of the Judicial Code of Conduct and Ethics, stipulates that Judicial Officers, shall
perform their duties in an efficient and competent manner. Competence is an
indispensable quality, required in discharge of judicial service.

143. The Court In re Baber, adopted definition of incompetence from other decisions such
as State ex rel. Hardie v. Coleman, 155 So, 129, 133 [Fla. 1934] [Supreme Court Florida],
which held incompetence to include ‘’ any physical, moral or intellectual quality, the lack
of which incapacitates one to perform the duties of his office.’’ The Supreme Court of
Alabama found it, in State ex rel. Brickell v. Martin, 180 Ala. 458, 61 So. 491, 494 [1913],
to comprise ‘’ mere incapacity for the performance of official duties.’’ In Oregon, the
Supreme Court, in the Matter of Field, 281 Or.623, 576 P. 2d. 348, 354 [banc. 1978], held

32
 incompetence means ‘’general incompetent performance of judicial duties, evidenced
by lack of the knowledge and judgment necessary, for the proper administration of
justice in our Courts.’’ Lastly, In re Barber, consideration was given to the dictionary
meaning of incompetence, which is, ‘’ lack of ability, knowledge, legal qualification, or
fitness to discharge the required duty or professional obligation,’’ Black’s Law Dictionary
765 [6th ed. 1990].

144. From the conduct of proceedings by the Petitioner in Kisii C.M.C.C No. 88 of 2007, the
Court does not see which quality required of a Judicial Officer in the definitions above,
could have been lacking in the Petitioner, to lead to a conclusion that she was
incompetent.

145. In re Baber, it was held further, that when incompetence is alleged against a Judicial
Officer, it is the role of the Court [or the Administrative Body] seized of the disciplinary
hearing, ‘’ to determine whether the conduct at issue, established that the Respondent
lacks the requisite ability, knowledge, judgment or diligence, to consistently and
capably discharge the duties of the office he or she holds.’’

146. Incompetence, even assuming the Petitioner conducted proceedings in Kisii C.M.C.C
No. 88 of 2007 in the abysmal manner assigned to her conduct of the proceedings by the
Respondent, would not, in the respectful view of this Court, validly be established by that
single conduct of proceedings.

147. It must be shown that the Judicial Officer has demonstrated lack of judgment,
knowledge, diligence and ability, to consistently and ably discharge the duties of his or
her office. Incompetence cannot be read from one Civil Application dealt with by a Judicial
Officer.

148. In re Baber, there was a substantial number of Attorneys and fellow Judges, who gave
evidence relating to the conduct of Judge Baber, in judicial work, over a period of time.
Reputation and opinion testimony was adduced. Incompetence of a Judicial Officer is to

33
 be assessed from cumulative evidence. It is demonstrated by a pattern of inappropriate
conduct over a period of time, as held, In re Conduct of Jordan, 290 Or. 669,624 P. 2d.
1074 and 1076 [banc 1981]

149. In finding Judge Baber incompetent, the Court ruled that it did not reach the
conclusion based on any one incident or charge, ‘’ but rather on a recurrent pattern of
mistaken rulings, over a period of years.’’ It is important to note that the Petitioner was
charged with judicial incompetence, not misconduct. In re Baber, misconduct was defined
as ‘’transgression, dereliction, unlawful or wrongful behaviour, or impropriety that is
wilful in character.’’ It was observed that Courts had in the past, used the term
‘misconduct,’ as a convenient collective term for several constitutional standards for
removal that connote wrongdoing. Incompetence was held to denote ‘’ inherent
incapacity that need not be coupled with wilful wrongdoing. When unaccompanied by
wrongful behaviour, incompetency does not constitute misconduct.’’ Article 168 [1] of
the Constitution of Kenya on removal of Judges, names incompetence as a ground for
removal, separate from other grounds – inability to perform functions, arising from
mental or physical incapacity; breach of code prescribed for Judges of the Superior Courts
by an Act of Parliament; bankruptcy; and gross misconduct or behaviour.

150. The Petitioner was not in the view of the Court judged fairly by the Respondent. The
charge against her was lack of competence. It was based on a single ruling. The ruling itself
was made in accordance with the law, and facts presented before the Petitioner by the
Parties. The Petitioner exercised an exclusive jurisdiction, in dealing with issues arising or
emanating from a decree, issued by the Magistrate’s Court. There were no Magistrates,
Judges or Advocates who worked with her, who attested to her incompetence over a
period of time. It was not shown that she was no longer capable of discharging the judicial
function. She was not declared incompetent based on cumulative evidence. The decisions
of the Judicial Officer under disciplinary proceedings on incompetence, must be shown to
have been consistently far afield of precedent and the law. They must be shown to
amount to egregious violation of fundamental rights, to an extent that the Judicial Officer
appears to have embraced impunity towards the law. The Court does not think that the

34
 ruling of the Petitioner in question, or any other of her hundreds of decisions, was shown
to fall within these parameters, to result in a finding of incompetence.

151. The Petitioner testified that over time, she had worked diligently, and was promoted
by the Respondent, heading and establishing Courts, and lastly was appointed as the
Deputy Registrar, in charge of the Employment and Labour Relations Court at Kisumu. She
had recorded hundreds of rulings and judgments. A competence determination must
remain focused on the Judicial Officer’s ability to consistently follow and apply the law
over time.

Judicial Discretion, Independence and Immunity.

152. These concepts were addressed by the Supreme Court of Kenya, in Bellevue
Development Company Limited v. Francis Gikonyo & 3 Others [2020] e-KLR.

153. The Court does not propose to discuss the concepts in greater depth, beyond what
was said by the Supreme Court.

154. The dispute involved 2 Hon. Judges of the High Court of Kenya, Francis Gikonyo and
Charles Kariuki, who had been sued by a Party who had appeared before them, and failed
to get favourable decisions. Having failed at the High Court and the Court of Appeal in
assigning civil liability to the Judges for their decisions, the aggrieved Party, exuding
considerable confidence in its cause against the Judges, filed Petition at the Supreme
Court, asking the Supreme Court to among other orders, declare that members of the
Judiciary do not enjoy absolute immunity under Article 160 [5] of the Constitution.

155. The Supreme Court held that immunity is granted to Judicial Officers, under Article
160 [5] of the Constitution of Kenya, where Judicial Officers’ acts or omissions are made
in good faith and in performance of their judicial functions.

35
156. It was explained by the Supreme Court that judicial immunity is based on public policy,
allowing Judicial Officers to express themselves freely, in matters brought before them,
and have confidence that in carrying out judicial functions, they will not be prosecuted or
harassed. The rationale for judicial immunity is the preservation of independent decision-
making. The immunity is not for the benefit of the Judicial Officer, but for the
administration of justice.

157. The Supreme Court also held that immunity is not a carte blanche for judicial impunity.
Judicial Officers must act in good faith. Good faith was defined in the decision, as a state
of mind consisting honesty in belief or purpose; faithfulness to one’s duty or obligations;
and absence of intent to defraud or to seek unconscionable advantage. Unchecked
immunity was found to lead to a disturbing body of jurisprudence, which resulted in
denying citizens redress for violations caused by errant Judicial Officers.

158. In Stump v. Sparkman 435 U.S. 349 [1978] one of the American decisions cited by the
Supreme Court of Kenya in Bellevue Ltd, it was held that the doctrine of judicial immunity,
forbade a suit against an Indiana Judge, who had authorized the sterilization of a slightly
retarded 15-year old girl, under the guise of appendectomy. The Judge approved the
medical procedure without a hearing, after the girl’s mother alleged that the girl was
promiscuous. When the girl was mature and married she discovered she was sterile, and
initiated civil action against the Judge. It was declared that the Judge enjoyed immunity
and was therefore not liable. In Lopez v. Vanderwater 620 F. 2d. 1229 [ 7th Cir. 1980] it
was held that a Judge was partially immune from a suit, after he personally arrested a
tenant who was in arrears of rent, owed to the Judge’s business associate. The Judge
waived the tenant’s right to trial by jury and sentenced him to 240 days in prison. The
tenant was only set free upon the intervention of another Judge. In Dykes v. Hosemann,
776 F 2d [11th Cir. 1985], the Judge awarded custody of a child to the father, himself the
son of a fellow Judge. The mother was not notified. Immunity doctrine was found
applicable to the Judge. There are other horror cases, of Judiciaries gone rogue, but these
shall suffice here.

36
159. Absolute immunity would be a roadmap to judicial authoritarianism and corruption,
where Judges cannot be held to account personally for violation of citizens’ civil rights,
hence the need to limit immunity to acts done in good faith and in lawful execution of
judicial functions.

160. Lastly, the Supreme Court held that Parties aggrieved by decisions of the Judicial
Officer have recourse in the appellate system. In egregious illegalities, violations of the
judicial oath, or outright illegalities and criminality, mechanisms for removal from office
exist. The Supreme Court summarized the doctrine of judicial immunity, as enunciated by
the Court Appeal in Bellevue Development Company v. Francis Gikonyo & 7 Others
[2018] e-KLR, as follows: -

‘’ Even though Judges are fallible human beings like everybody else, a mechanism does exist
in our laws for correcting whatever errors they may commit in the discharge of their
juridical functions. Aggrieved parties are at liberty to appeal a matter of course and that
appellate systems suffices to deal with ordinary errors of law and fact, so at the end of the
day, justice is served. Where a Judge’s conduct consists egregious illegalities, violation of
judicial oath or outright illegalities and criminality, a mechanism for removal does exist.’’

161. It is indispensable to promote and protect the independence and impartiality of

individual Judicial Officers, and the Judiciary as a whole. It is agreed, that judicial
independence, is not a prerogative or privilege of Judicial Officers, but a guarantee of
everyone’s right to fair administration of justice. The Constitution of Kenya, The
International Covenant on Civil and Political Rights and The Bangalore Principles on
Judicial Conduct, stress the need for independent and impartial judiciaries, where the
individual Judicial Officer is able to discharge judicial functions independently and
competently.

162. In C.M.C.C No. 88 of 2007, the Petitioner made a decision which in the eyes of this
Court was sound and lawful as explained above. She enjoyed decisional independence
and was not shown to have acted in bad faith. Her decision was challenged on Appeal.

37
 Ought she to have been removed, while the Complainant had exercised his right of
appeal? What if the High Court upheld her ruling on Appeal? The Court is persuaded,
based on the decision of the Supreme Court, that the Petitioner’s independence was
disregarded by the Respondent. She acted lawfully and in good faith. The Respondent
was unduly influenced in its decision to remove the Petitioner from office, by its
perception that the Petitioner disregarded a binding decision of the High Court. The letter
of dismissal dated 27th March 2019, attests to this thinking by the Respondent. It reads:
‘’… you proceeded to issue orders overturning the said orders of the High Court, which
action was tantamount to overturning an order of the High Court, causing grave
suffering and inconvenience to the Complainant. In essence, you failed to perform your
duties in an efficient and competent manner as required by the Judicial Service Code of
Conduct and Ethics.’’

163. This conclusion is not supported by evidence as discussed above. It is incorrect.

164. The Constitution of Kenya and other standards of appropriate judicial conduct such as
the Bangalore Principles of Judicial Conduct, while requiring Judiciaries to uphold judicial
competence and diligence, promote judicial immunity as necessary, in sustenance of
stable, accountable and independent Judiciaries. Impediments that hinder the Judicial
Officers’ ability to carry out their functions are deprecated. Impediments have been
identified to include pressure of various kinds, both intended [deliberate attempts to
influence Judicial Officers] and unintended [through circumstances which may lead the
Judicial Officers to be restrained in their decisions]

165. The Petitioner was expected, in view of the High Court ruling, to be restrained in her
own ruling, or plainly, not to exercise her decisional independence, in a matter she was
fully seized. There was unintended pressure on the Petitioner, from the High Court ruling,
to determine the execution dispute as had been suggested by the High Court.

166. It is important to protect the concept of hierarchy of courts established under our
Constitution. Equally important, is the respect for decisional independence of the lower

38
 jurisdictions, by the higher jurisdictions. There should never be intended or unintended
pressure exerted by the High Court on Magistrate’s Court, in decision-making. Judicial
Independence demands that we all guard against external, as well as internal pressures.
The Petitioner guarded her independence and that of the Institution she served.

167. It was alleged in the Affidavit of the Chief Registrar, in response to the Petition, that
the Petitioner conceded mistakes may have taken place, and that she was ready to learn,
during the disciplinary hearing. This appears to the Court, to have taken place, after the
Petitioner was repeatedly put to task by the Commissioners. She was persistently asked
by Senior Judges in the Disciplinary Committee, why she overturned a decision made by
another Senior Judge. It is possible that the Petitioner wilted, after heavy exertion. The
remorseful comments on the part of the Petitioner, cannot be taken at face value, or lead
to the conclusion that she admitted to being incompetent.

168. The Court is satisfied that there was no valid reason or reasons, to warrant the
dismissal of the Petitioner from service by the Respondent.

Remedies.

169. The Petitioner seeks a declaratory order, that the Respondent acted unlawfully, in
analysing her ruling to determine her competence. She invokes Apollo Mboya v. Judicial
Service Commission & Another; Justice Kalpana Rawal & 4 Others [ Interested Parties],
[2020] e-KLR, where it was held that, where the Respondent, in dealing with complaints
against Judicial Officers from litigants, realizes that such complaints relate to the merits
of a decision, must drop the complaints like a hot potato.

170. The Court does not think that the Respondent could have dealt with allegations made
against the Petitioner, concerning her competence, without looking into the merits of her
ruling and that of the High Court. Although the Respondent kept reassuring her during the
disciplinary hearing, that it was not sitting on Appeal against her ruling, it was inevitable,

39
 to make an informed decision on the Petitioner’s competence, to delve into the merits of
her decision.

171. The Respondent appears in fact, to have failed in fully analysing the merits of the
Petitioner’s ruling, and therefore reached at the wrong finding, that she had overturned
the ruling of the High Court. If the Respondent is to be faulted, it is not for delving into
the merits of the ruling made by the Petitioner; it is for delving into the merits half-
heatedly, resulting in a flawed conclusion that the Petitioner was incompetent. It was not
possible for the Respondent to have an informed view of what the Petitioner and the High
Court said, with regard to ownership and possession of the lorry, without going into the
merits of the rulings in issue. This Petition would not be resolved, without looking at the
merits in the rulings subject matter of the disciplinary hearing. The Respondent similarly
would not resolve the charge of incompetence, without looking at the merits of the rulings
made by the Petitioner and the High Court. Declaratory order sought at paragraph 63 [a]
of the Petition is declined.

172. There are far too many laws alleged to have been contravened by the Respondent,
under paragraph 63 [b] of the Petition. When too many laws are cited in any Petition,
there is always a risk of imprecision. Unfortunately, many litigants appear to think that
the more laws they cite, the higher the probability of success. The Court does not have
jurisdiction to determine whether the Respondent flouted Vetting of Judges and
Magistrates [Amendment] Act 2013. As stated from the outset, the process and outcome
at the particular Board was found to be null and void for want of jurisdiction. Suffice it to
say, it is declared that the decision made by the Respondent against the Petitioner,
Contravened Articles 41 [1], 47[1], 50, 160[5], 236[a] of the Constitution, and
substantive statutory rights, under Sections 43 and 45 of the Employment Act, 2007.

173. The prayer to quash the charge, proceedings and determination by the Respondent
cannot be granted wholesale. The Court has concluded that the charge was properly
drawn. The 5 complaints reached the Respondent regularly. Details of the complaints
were stated. Proceedings took place in accordance with the Judicial Service Act. Those

40
 proceedings led to dismissal of other charges against the Petitioner. What becomes of
those other charges, if the proceedings leading to their dismissal are quashed? There is
no justifiable reason to quash a charge sheet that was regularly drawn, and proceedings
regularly convened and concluded.

174. The fault is with the determination, concluding that the Petitioner suffered judicial
incompetence. That decision, is brought into this Court and is hereby quashed.

175. Paragraph 63 [d] seeks compensation for breach of Petitioner’s fundamental rights
and freedoms under Articles 27 [1] 28, 41, and 236 [a] and [b]. The Court is not persuaded
that the Petitioner was denied rights under Article 27 of the Constitution, on equality and
freedom from discrimination. Her Petition is not about discrimination. The focus of her
grievance similarly was not on Article 28 on the right to human dignity. The Court does
not think that the conduct of regular disciplinary proceedings against her, violated her
dignity. She was not removed from office without due process of the law, in violation of
Article 236 [b] of the Constitution. She was however, victimized for having performed the
functions of her office in accordance with the Constitution or any other law, in violation
of Article 236 [a]. That violation has been redressed elsewhere in this Judgment. The
Constitution and the Judicial Service Act mandates the Respondent to administer
disciplinary proceedings and sanctions against Judicial Officers. Exercise of that mandate
was not shown to violate the Petitioner’s right to inherent dignity, warranting
compensation by the Respondent.

176. The prayer in paragraph 63 [e] on absolute immunity has adequately been addressed
in the Supreme Court decision Bellevue Development Company Ltd v. Francis Gikonyo &
3 Others [2020] e-KLR. The Court would only state, that the Petitioner enjoyed judicial
immunity, within the parameters drawn in the decision of the Supreme Court.

177. Paragraph 63 [e] is on reinstatement. This remedy has support on authority of the
Court of Appeal, in Judicial Service Commission & Another v. Lucy Muthoni Njora [2021]
e-KLR. It was held that ‘’ once the dismissal decision involving a State Officer is

41
 adjudicated unlawful, null and void, reinstatement is an automatic remedy.’’ The
Petitioner was a State Officer as defined under Article 260 of the Constitution. The Court
has determined that her dismissal was unlawful. The Court of Appeal in this decision also
held that an order for payment of back- salary and benefits, provided adequate
compensation. This holding addresses the prayer for compensation.

178. The Court is under obligation to grant an order of automatic reinstatement to the
Petitioner, and hereby grants the order, without loss of rank, salary and benefits, with
effect from the date of dismissal.

179. No order on the costs.

In sum, IT IS ORDERED: -

a. It is declared that the Petitioner’s dismissal by the Respondent from judicial service,
violated the Petitioner’s constitutional rights under Articles 41 [1], 47[1], 50, 160 [5]
and 236 [a] of the Constitution and substantive statutory rights under Sections 43
and 45 of the Employment Act, 2007.

b. The decision by the Respondent, dismissing the Petitioner from judicial service on
the ground of incompetence is brought into this Court, and is hereby quashed.

c. The Petitioner is granted an order of automatic reinstatement, without loss of rank,

salary and benefits from the date of dismissal.

d. No order on the costs.

Dated, signed and released to the Parties electronically, at Nairobi, under Ministry of Health
and Judiciary Covid-19 Guidelines, this 26th day of November, 2021.

James Rika
Judge

42