Kamande v Judicial Service Commission (Petition E005 of 2025) [2025] KESC 48 (KLR) (Civ) (15 August 2025) (Judgment)

Kamande v Judicial Service Commission (Petition E005 of 2025) [2025] KESC 48 (KLR) (Civ) (15 August 2025) (Judgment) Neutral citation: [2025] KESC 48 (KLR) REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA CIVIL PETITION E005 OF 2025 MK IBRAHIM, SC WANJALA, N NDUNGU, I LENAOLA & W OUKO, SCJJ AUGUST 15, 2025 BETWEEN ERIC KAMANDE ..................................................................................... APPLICANT AND JUDICIAL SERVICE COMMISSION ................................................  RESPONDENT (Being an appeal from the Judgment of the Court of Appeal at Nairobi (Gatembu, Tuiyott & Gachoka, JJ.A.) delivered on 20th December 2024 in Civil Appeal No. E403 of 2019) Nature and scope of the disciplinary proceedings of a judicial sta The appellant challenged his dismissal by the Judicial Service Commission (JSC), alleging violations of his rights to a fair hearing and fair administrative action under Articles 47 and 50, including denial of the opportunity to confront accusers, access documents, and cross-examine witnesses, as well as an inordinate 23-month delay. The JSC argued that the Chief Justice acted within his discretion and that the delay was justified by members’ involvement in election dispute resolution. The Instant Court held that the appellant’s rights were violated, emphasizing that the Chief Justice’s role was limited to preliminary inquiry, that full disciplinary proceedings must allow confrontation and evidence presentation, and that the prolonged delay was inordinate and prejudicial. Constitutional remedies were discretionary and could include reinstatement, compensation, or both. Reported by Flora Weru Jurisdiction – appellate jurisdiction - appellate jurisdiction of the Supreme Court –claim that the disciplinary proceedings by the Judicial Service commission contravened the fundamental rights of the appellant- whether the Supreme Court had jurisdiction under the constitution to entertain a case that involved the interpretation or application of the constitution – Constitution of Kenya, article 163(4)(a). Constitutional Law – Judicial Service Commission –disciplinary procedure and authority - disciplinary procedure and authority over judicial staff – nature and scope of – what was the scope of the Judicial Service https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 1 Commission’s powers to discipline judicial staff - Constitution of Kenya, article 47, 50; Judicial Service Act, Section 32, Third Schedule paragraph 25. Constitutional Law – Judicial Service Commission – disciplinary procedure and authority - guiding principles in the disciplinary proceedings - what were the guiding principles on disciplinary proceedings before Judicial Service Commission? Constitutional Law – Judicial Service Commission – chief Justice – role of the chief Justice in the disciplinary procedure over judicial staff by the Judicial service commission - claim that the Chief Justice did not follow procedure by failing to conduct investigations -  whether the role of the Chief Justice required the Chief Justice to conduct an inquiry or investigation into allegations of impropriety or misconduct before framing charges and forwarding the charges to the staff? - Judicial Service Act, Third Schedule Paragraph 25 Constitutional law – fundamental rights and freedoms – right to fair administration action - claim that the disciplinary procedure was not followed accordingly and that there a breach of the right to fair administrative action-  where the Judicial service commission disciplined a judicial service staff as an administration action – unreasonable delay – claim that the 23 month delay in concluding the disciplinary process violated the rights of a fair hearing and fair administrative action of the appellant– whether a 23-month delay in concluding the disciplinary process was unreasonable and violated fundamental rights and freedoms – Constitution of Kenya, article 47, 50. Constitutional Law – fundamental rights and freedoms – right to a fair trial – claim that the appellant was not accorded a fair hearing in the disciplinary proceedings by the Judicial Service Commission –claim that the appellant was denied an opportunity to confront accusers and challenge evidence- claim that there was  failure to supply witness statements and relevant documents prior to the hearing- whether the appellant was accorded a fair hearing in accordance to the Constitution – Constitution of Kenya, article 50. Constitutional Law – enforcement of rights - constitutional remedies – claim of a violation of fair hearing and fair administrative action in the disciplinary proceedings – claim that there was a dismissal arising from unconstitutional disciplinary process – whether the appellant was entitled to remedies such as reinstatement or compensation under Constitution and the ELRC Act – Constitution of Kenya article 23. Brief facts The appellant, a Principal Administration Ocer with the Judicial Service Commission (JSC), was dismissed for alleged gross misconduct after accusations that he met privately with a bidder during a Judiciary tender evaluation process and failed to disclose the meeting, thereby creating a conict of interest. He challenged his dismissal before the Employment and Labour Relations Court (ELRC), contending that the JSC violated mandatory disciplinary procedures under the Judicial Service Act and denied him procedural and substantive fairness. The ELRC agreed, nding that the JSC failed to conduct proper investigations and relied on unsubstantiated allegations, rendering the disciplinary process and termination unlawful, and consequently set aside the dismissal and ordered the appellant’s reinstatement. Aggrieved, the JSC appealed, arguing that the ELRC misapplied the law and improperly interfered with its internal disciplinary processes, while the appellant cross-appealed seeking compensation for constitutional violations. In a judgment delivered on December 20, 2024, the Court of Appeal allowed the JSC’s appeal, holding that preliminary investigations before disciplinary proceedings were discretionary, that the appellant had been accorded a fair hearing, and that his undisclosed meeting with a bidder constituted gross misconduct justifying dismissal; it therefore set aside the ELRC judgment and dismissed the appellant’s petition with costs.   In the instant case the appellant appealed further, asserting that he was denied a fair hearing, that mandatory investigations were not conducted, that the Court of Appeal exceeded its jurisdiction, and that his constitutional rights were inadequately remedied, while the JSC maintained that the appeal was incompetent, the disciplinary process complied with the law and the appellant was accorded due process. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 2 Issues i. Whether the Supreme Court had jurisdiction under the constitution to entertain a case that involved the interpretation or application of the constitution. ii. Whether the discipline of judicial sta as an administrative action by the Judicial Service Commission fell under the ambit of constitutional disputes. iii. What is the scope of the Judicial Service Commission’s (JSC) powers to discipline judicial sta? iv. What were the guiding principles on disciplinary proceedings before Judicial Service Commission? v. Whether the role of the Chief Justice required the Chief Justice to conduct an inquiry or investigation into allegations of impropriety or misconduct before framing charges and forwarding the charges to the sta? vi. Whether the appellant was accorded a fair hearing in accordance to the Constitution vii. Whether a 23-month delay in concluding the disciplinary process was unreasonable and violated fundamental rights and freedoms viii. Whether the appellant was entitled to remedies such as reinstatement or compensation Relevant provisions of the Law Relevant provisions of the law Constitution of Kenya Article 50 - Fair hearing. 1. Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body Article 259 - Construing this Constitution.      (8) If a particular time is not prescribed by this Constitution for performing a required act, the act shall be done without unreasonable delay, and as often as occasion arises. Judicial Service Act Cap 8 A Third schedule 25 - Proceedings for dismissal 1. Where the Chief Justice, after such inquiry as they may think fit to make, considers it necessary to institute disciplinary proceedings against an officer on the ground of misconduct which, if proved, would in the Chief Justice‘s opinion, justify dismissal, he shall frame a charge or charges against the officer and shall forward a statement of the said charge or charges to the officer together with a brief statement of the allegations, in so far as they are not clear from the charges themselves, on which each charge is based, and shall invite the officer to state, in writing should he so desire, before a day to be specified, any grounds on which he relies to exculpate themselves. 2. If the officer does not furnish a reply to the charge or charges within the period specified, or if in the opinion of the Chief Justice he fails to exculpate themselves, the Chief Justice shall cause copies of the statement of the charge, or charges, and the reply, if any, of the officer to be laid before the Commission, and the Commission shall decide whether the disciplinary proceedings should continue or not. 3. If it is decided that the disciplinary proceedings should continue, the Commission shall appoint a Committee or Panel to investigate the matter consisting of at least three persons who shall be persons to whom the Commission may, by virtue of the Constitution, delegate its powers:Provided that the Chief Justice shall not be a member of the Committee or Panel, but if puisne judge of the High Court have been designated as members of the Commission under the Constitution, they may be members of the Committee or Panel. 4. The Committee or Panel shall give the officer a written notice of not less than fourteen days specifying the day on which they may be required to appear before it to answer to the charges made against them. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 3 5. If witnesses are examined by the Committee or Panel, the officer shall be given an opportunity of being present and of putting questions on their own behalf to the witnesses, and no documentary evidence shall be used against the officer unless he has previously been supplied with a copy thereof or given access thereto. 6. The Director of Public Prosecutions shall, if requested by the Commission, direct a legally qualified officer from the Office of the Director of Public Prosecutions to present to the Committee or Panel the case against the officer concerned. 7. The Committee or Panel shall permit the accused officer to be represented by an advocate. 8. If during the course of the investigation, grounds for the framing of additional charges are disclosed, the Chief Justice shall follow the same procedure adopted in framing the original charges. 9. The Committee or Panel, having investigated the matter, shall forward its report thereon to the Commission together with the record of the charges framed, the evidence led, the defence and other proceedings relevant to the investigation; and the report of the Committee or Panel shall include— 1. a statement whether in the Committee or Panel’s judgement the charge or charges against the officer have been proved and the reasons therefor; 2. details of any matters which, in the Committee or Panel’s opinion, aggravate or alleviate the gravity of the case; and 3. a summing up and such general comments as will indicate clearly the opinion of the Committee or Panel on the matter being investigated, but the Committee or Panel shall not make any recommendation regarding the form of punishment to be inflicted on the officer. 10.  The Commission, after consideration of the report of the Committee or Panel, shall, if it is of the opinion that the report should be amplified in any way or that further investigation is desirable, refer the matter back to the Committee or Panel which shall conduct the investigation for a further report. 11. The Commission shall consider the report and shall decide on the punishment, if any, which should be inflicted on the officer or whether he should be required to retire in the public interest. Public Procurement and Asset Disposal Act Section 65 - Inappropriate inuence on evaluations, etc. 1. After the deadline for the submission of tenders, proposals or quotations— 1. person who submitted a tender shall not make any unsolicited communications to the procuring entity or any person involved in the procurement proceedings that might reasonably be construed as an attempt to influence the evaluation and comparison of tenders; and 2. a person shall not attempt, in any way, to influence that evaluation and comparison. 2. A person who contravenes the provisions of subsection (1) commits an offence and shall lead to the tenderer being disqualified and the public officer facing disciplinary action in addition to any other action under this Act. 3. Upon completion of the evaluation process, a tenderer may communicate with the procuring entity on the procurement proceedings. Held 1. Under article 163(4)(a) of the Constitution, an appeal lay to the Supreme Court as of right in any case that involved the interpretation or application of the Constitution. Jurisdiction was the lifeblood of judicial authority; without it, a court acted in vain and the resultant decision was worthless, with no legal eect. The test for jurisdiction under article 163(4)(a) included that it must be demonstrated that the issues in dispute involved a constitutional question that was subject of judicial determination by interpretation or application in the courts below. The appeal fell within the ambit of article 163(4)(a) and therefore the Court had jurisdiction to entertain it. 2. The discipline of judicial sta as an administrative action by the Judicial Service Commission, was subject to provisions of articles 47 and 50 of the Constitution. All appointments, disciplinary and removal proceedings of judicial ocers and sta were governed by section 32 of the Judicial Service Act as read with the Third Schedule to that Act. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 4 3. The guiding principles enunciated by the Supreme Court applied with equal force to judicial sta. The guiding principles on disciplinary proceedings before Judicial Service Commission included: 1. The  JSC  shall comply with the procedure set out in Article 47 of the Constitution and the Fair Administrative Actions Act. 2. JSC shall always give an employee reasonable time to defend himself or herself. 3. An employee shall be informed the basis of complaint(s) or who his or her accusers are to enable the employee defend themselves. 4. JSC shall furnish an employee with details of allegations against him or her. 5. JSC must always be clear from the start whether the administrative action against an employee was of an investigatory nature or of a disciplinary nature. Should an investigatory process turn into a disciplinary one, an employee must be accorded fresh notice to prepare his/her defence. 6. An employee should be accorded a public hearing if he/she desires to have one. A decision to decline such a request must be accompanied with reasons which shall be given to the employee. 7. An employee shall be given detailed reasons for any administrative action/decision by JSC. 8. An employee should access and receive any relevant documents relating to his/her matter. Any decision to the contrary must be accompanied by a written reason. 9. An employee shall be accorded opportunity to attend proceedings, in person or in the company of an expert of his/her choice. 10. An employee undergoing disciplinary proceedings shall be given an opportunity to call witnesses, be heard; cross examine witnesses; and request for an adjournment of the proceedings upon providing good reasons and where necessary to ensure a fair hearing. 4. A plain reading of the paragraph 25(1) was that there were four stages to be undertaken by the Chief Justice in the dismissal proceedings against an ocer, all encapsulated in paragraph 25(1) and (2). First, the Chief Justice must conduct an inquiry; second, frame and forward the charge or charges to the ocer, third, invite the ocer to state his or her case; and fourth, if the ocer failed to respond or responds but did not exculpate himself or herself, the Chief Justice’s nal role was to lay the charges and response, if any, before the JSC for its consideration and decision. 5.  The opening sentence in paragraph 25(1) that; “where the Chief Justice, after such inquiry as they may think t to make…” did not impose any mandatory duty on the Chief Justice to conduct any investigations, so long as from the information or material provided to him or her, the Chief Justice considered it necessary to institute disciplinary proceedings against the ocer concerned. The use of phrases like “may think t”, “consider it necessary”, and “in the Chief Justice’s opinion” conveyed a sense of discretion. In the exercise of that discretion, the Chief Justice was required to ensure that each of the four stages was fair and in accordance with the constitutional principles of a fair hearing. (title)? 6. The inquiry envisaged in paragraph 25(1) aforesaid only required the Chief Justice, in making a preliminary decision, to be satised, prima facie that a complaint against an ocer contained sucient evidence to warrant further investigation by the JSC. The Chief Justice was not expected to play the role reserved for the JSC. After satisfying himself or herself, prima facie, that a reasonable ground had been established to warrant the dismissal of an ocer, the Chief Justice yielded to the JSC at that point. A full hearing, with presentation of evidence, cross-examination of witnesses, and representation by counsel, could only be had before the JSC. 7. It was not the function of the Chief Justice to undertake investigations, to question the ocers concerned, or to compile reports, in order to substantiate the allegations. Rather, the Chief Justice’s role was limited to making inquiries by examining the preliminary facts without delving into the merits of the complaint. 8. The audi alteram partem rule, as a basic but fundamental principle of natural justice and fair play, dictated that no one should have their rights negatively impacted without a fair hearing. Conversely, a person accused of a transgression was entitled to confront his or her accuser; to cross-examine the accuser under oath in order to test the veracity of the complaints. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 5 9. The right to a fair hearing was rmly rooted in article 50(1) of the . The principle of a fair hearing demanded more than procedural formality; it required substantive fairness. 10. Under Section 65 of the Public Procurement and Asset Disposal Act it was an oence for a bidder to make unsolicited communications after the deadline for the submission of tenders, to the procuring entity or any person involved in the procurement proceedings. Such a bidder would be disqualied, and any public ocer involved shall face disciplinary action in addition to any other action under the . The mischief that section 65 of the Public Procurement and Asset Disposal Act sought to address was the undue inuence of the procurement process. It was not just the mere making of any unsolicited communications. The communication must be one that “might reasonably be construed as an attempt to inuence the evaluation and comparison of tenders”; and a person shall not attempt, in any way, to inuence that evaluation and comparison. 11. The committee was appointed by the JSC and was an organ and agent of the JSC, all the three members comprised commissioners of the JSC. It exercised powers delegated by the JSC. It was the JSC and therefore article 252 of the Constitution, which vested in JSC the general powers to conduct investigations on its own initiative or on a complaint made by a member of the public and to issue summons to a witness to assist for the purposes of its investigations applied to it. The Committee had the power to issue summons to compel the complainant’s attendance. 12. The JSC being an independent Commission, could not rely wholly on evidence presented before a dierent body in order to arrive at its conclusion. It was its function to conduct fresh investigations and determine the question of impropriety based on its own independent evaluation of the evidence presented to it. The Court of Appeal therefore erred in holding that it was proper for the JSC to close proceedings without summoning the complainant. This was, no doubt, prejudicial to the appellant’s right to a fair hearing. 13. As pertains to the delay of 23 months in concluding the disciplinary process, the JSC concedes the delay, but justied it on account of the fact that most of the committee members were judges or judicial ocers who were involved in hearing election petitions in their respective courts; that such disputes are governed by strict legal timelines. While the ELRC declared the delay as inordinate and in breach of article 47(1) of the Constitution and the JSC’s own policy to the eect that such proceedings must be concluded within six months, the Court of Appeal, on the other hand, acknowledged the delay but did not go beyond that. The Supreme Court declared that the delay went against the tenets of article 47 of the . The Court, however excused the delay observing, one, that the delay was suciently explained, and two, that the  did not prescribe a timeline within which the JSC must hear and determine disciplinary cases. Whereas it was correct that no specic period is prescribed for the disposal of complaints before the JSC, whenever there was a delay, the court would consider whether the delay was unreasonable, the length of the delay, the reasons for the delay and the potential prejudice to the other party. 14. The absence of a timeline within which to hear and determine complaints was no excuse or justication for a delay of 23 months. What constituted “without unreasonable delay” would depend upon the peculiar circumstances of each case taking into account, among other factors, the length of the period of delay, the justications proered, and the prejudice suered. 15. The courts in Kenya, including the Supreme Court, have in their numerous decisions deprecated delays in concluding disciplinary hearings, emphasizing that prolonged processes undermined the principles of fairness, natural justice, and the right to expeditious resolution of such cases. The delays also prejudiced the aected judges, judicial ocers and sta and could lead to erosion of condence in the Judicial Service Commission. 16. The JSC explained the delay, that some members of the Commission were involved in the determination of election disputes resolution, it was not satisfactory that the explanation overrode the constitutional imperative for fairness to the appellant. Out of eleven Commissioners, only ve were judges and judicial ocers. 17. The Judicial Service Commission, being the body mandated by the Constitution to receive complaints against, investigate and remove from oce or otherwise discipline registrars, magistrates, other judicial ocers and sta of the Judiciary, must show the way, by example. It could not demand from judges and judicial https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 6 ocer’s higher standards than it could itself uphold in its oversight role. It would be dicult, for example, to discipline any of the categories of ocers referred to above on account of, say, delayed judgment or ruling when the Judicial service Commission was itself guilty of delay. 18. Besides, the determination of election disputes within a strict timeline was an issue that was expected at every election cycle and could not of itself override the appellant’s constitutional entitlement. A delay of nearly two years in the instant appeal was certainly not only inordinate but undeniably prejudicial to the appellant who had to endure the waiting and anxiety, not to mention being out of work on interdiction and half salary. The prolonged judicial process itself had not eased the appellant’s pain and endurance. It was nearly eight years since his interdiction. 19. The appellant’s rights to a fair trial and fair administrative action were violated. The disciplinary process failed to meet the minimum standards of fairness. The JSC fell short of its mandate set out in article 172(1) (c) of the  , section 32 of the  , and the relevant paragraphs under the Third Schedule to the JS Act. The appellant was condemned without an opportunity to confront his accuser in violation of article 50(1) of the . The JSC violated the appellant’s right to fair administrative action under articles 47(1) and 50(1) of the  on account of 23 months delay without justication. 20. The jurisdiction of the Court of Appeal, under article 164 of the    and the  , Cap. 9, on a rst appeal included the power to review the evidence, evaluate and draw its own conclusions, making allowance for the fact that, unlike the trial court, it had neither seen nor heard the witnesses. The second rule was that the responsibility of the court was to rule on the evidence on record and not to introduce extraneous matters not pleaded and canvassed by the parties. Evaluating whether the appellant’s conduct met the legal threshold of gross misconduct squarely fell within this jurisdiction. 21. The Court of Appeal did not err in raising the issue of bias sua sponte nor in applying principles of judicial bias to a non-judicial ocer. Its intervention was consistent with constitutional principles and common law doctrines of fairness and natural justice, which were the central questions in the dispute. 22. Compensation in the context of employment, was a remedy intended to redress the economic loss suered as a consequence of the unfair termination of employment. It was not intended to unjustly enrich a wronged employee. In the instant appeal, the proceedings culminating in the dismissal of the appellant were conducted in violation of the Constitution and that the appellant’s rights were infringed. The remedies for constitutional violations were set out in article 23(3). 23. The use of the word “including” in article 23(3) aforesaid that a “court may grant appropriate relief, including...”, suggested that the categories of remedies were not limited to those listed in Article 23(3). What constituted appropriate relief would self- evidently dier from case to case depending on the circumstances of the case under consideration. The court must weigh all alternative remedies before settling on the most ecacious one. Constitutional damages could still be the most eective remedy amidst other available remedies in a particular case. Since the categories of constitutional remedies were not closed, section 12 of the Employment and Labour Relations Court Act, Cap. 8E, granted the court the power to make an order for reinstatement, subject to this being done within three years of dismissal, and on such conditions as the court thinks t to impose. 24. Both remedies of reinstatement and compensation were discretionary and could be granted simultaneously, depending on the unique circumstances of every case. The primary purpose of a constitutional remedy was not compensatory or punitive but to vindicate the rights violated and to prevent or deter any future infringements. Indeed, in some cases, a declaration of a violation of a right only without more could be an appropriate vindication to meet the justice of the case. Such a declaration was itself a powerful statement from the court and served as a warning against future violations. In deciding what remedy to issue, the court also considered public policy, the interests of society as a whole as against the victim’s interest. 25. What was sought as compensation was an exercise of judicial discretion. Secondly, constitutional remedies were not compensatory or punitive but were meant to vindicate the rights violated; a declaration of a violation https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 7 of a right per se may be sucient vindication; and that public policy was a key factor to be taken into consideration. Obiter 26. Earlier on in this judgment, we stressed that the JSC, as a key constitutional organ, should lead by example. It can do so effectively by promoting self-scrutiny, continuous assessment and improvement of its operations. Based on the number of cases decided in favour of and against the JSC over time, it would be useful for it to establish internal, structured post-litigation case-review mechanisms for systematic self-assessment and reflection on court decisions in which it has been a party. Some of these cases impact not only the institution’s legal standing but also its public image and institutional integrity. We also believe that there are numerous lessons to be drawn from past decisions that will help the JSC in its disciplinary processes and other aspects of its general decision-making practices. The suggested exercise should be able to guarantee that, going forward, the JSC shall endeavour to keep to the constitutional and legal expectations, in addition to reducing unnecessary litigation and delay. Petition allowed Orders i. The Petition dated January 22, 2025 was allowed. ii. The Judgment of the Court of Appeal was set aside in respect of its findings that the appellant was properly, fairly and lawfully terminated from employment. iii. We declare that the disciplinary proceedings were inconsistent with Article 172(1)(c) of the  , violated Articles 47(1) and 50(1) of the  , Section 32 of the    and the Third Schedule to the  . Consequently, the termination of the appellant’s services was unprocedural, unfair, unlawful and in violation of the Constitution. iv. The respondent shall reinstate the appellant to the position of Principal Administrative Officer, Human Resource Directorate, (if that position is still available) without loss of benefits, allowances and salary. v. As an alternative to (iv), above and in the event the position of Principal Administrative Officer, Human Resource Directorate was not available, the respondent shall re-engage the appellant to a position equivalent to Principal Administrative Officer, without loss of benefits, allowances and salary. vi. The respondent shall pay the appellant all withheld salary from the time of interdiction on April 12, 2017 to the date of this judgment. vii. The respondent shall bear the costs of this appeal. viii. We hereby direct that the sum of Kshs. 6,000/- deposited as security for costs upon lodging of the instant appeal, be refunded to the depositor. Citations Cases Kenya 1. Anarita Karimi Njeru v Republic Miscellaneous Criminal Application 4  of  1979; [1979] KEHC 30 (KLR) - (Explained) 2. Attorney General v Law Society of Kenya & 4 others Civil Appeal 426 of 2018; [2019] KECA 283 (KLR) - (Explained) 3. Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union (K) Civil Appeal 293 of 2015; [2017] KECA 136 (KLR) - (Explained) 4. Ethics and Anti-Corruption Commission & another v Ojienda & 2 others Petition 30 & 31 of 2019 (Consolidated); [2022] KESC 59 (KLR) - (Explained) 5. Gichuru v Package Insurance Brokers Ltd Petition 36 of 2019; [2021] KESC 12 (KLR) - (Explained) 6. Independent Electoral and Boundaries Commission v Chege Petition 23 (E026)  of  2022; [2023] KESC 74 (KLR) - (Explained) 7. Joho & another v Shahbal & 2 others Petition 10 of 2013; [2014] KESC 34 (KLR) - (Explained) https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 8 8. Judicial Service Commission & another v Njora Civil Appeal 486 of 2019; [2021] KECA 366 (KLR) - (Explained) 9. Judicial Service Commission v Eric Michael Karanja Kamande Civil Appeal E403  of  2021; [2024] KECA 1924 (KLR) - (Mentioned) 10. Judicial Service Commission v Ochenja Civil Appeal 312 of 2019; [2020] KECA 3 (KLR) - (Mentioned) 11. Kamande v Judicial Service Commission Petition 50  of  2020; [2021]  KEELRC  1537  (KLR) - (Explained) 12. Karani v Judicial Service Commission Petition 3 of 2021; [2022] KESC 37 (KLR) - (Followed) 13. Law Society of Kenya v Attorney General & 4 others Petition 45 of 2019; [2023] KESC 19 (KLR) - (Followed) 14. Loitiptip v Independent Electoral and Boundaries Commission & 2 others Petition 18 & 20 of 2018 (Consolidated); [2019] KESC 67 (KLR) - (Explained) 15. Macharia & another v Kenya Commercial Bank Ltd & 2 others Application 2  of  2011; [2012] KESC 8 (KLR) - (Applied) 16. Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) Petition 15 & 16 of 2015 (Consolidated); [2016] KESC 12 (KLR) - (Mentioned) 17. Musembi & 13 others v Moi Educational Centre Co. Ltd & 3 others Petition 2  of  2018; [2021] KESC 50 (KLR) - (Applied) 18. Mutava v Tribunal Appointed to Investigate the Conduct of Justice Joseph Mbalu Mutava, Judge of the High Court of Kenya Petition 15 “B” of 2016; [2019] KESC 49 (KLR) - (Explained) 19. Nduttu & 6000 others v Kenya Breweries Ltd & another Petition 3 of 2012; [2012] KESC 9 (KLR) - (Applied) 20. Nyagol v Judicial Service Commission & another Petition E015  of  2024; [2024]  KESC  69  (KLR) - (Explained) 21. Omolo,Grace A v Attorney General & 3 others Petition 252  of  2011; [2012]  KEHC  5420  (KLR) - (Mentioned) 22. Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd Civil Appeal 50  of  1989; [1989] KECA 48 (KLR) - (Applied) 23. Peter O. Ngoge v Francis Ole Kaparo, Clerk of the National Assembly, Electoral Commission of Kenya & Attorney-General Civil Application 260 of 2007; [2012] KECA 6 (KLR) - (Mentioned) 24. Rai & 3 others v Rai & 4 others Petition 4 of 2012; [2014] KESC 31 (KLR) - (Explained) 25. Ruto v Judicial Service Commission & another Petition 48  of  2019; [2019]  KEELRC  523  (KLR) - (Mentioned) 26. Shollei v Judicial Service Commission & another Petition 34 of 2014; [2022] KESC 5 (KLR) - (Applied) 27. Timothy Nchoe Sironka v Judical Service Commission Petition 20 of 2020; [2020] KEELRC 503 (KLR) - (Mentioned) 28. Wamwere & 5 others v Attorney General Petition 26, 34  &  35  of  2019 (Consolidated); [2023] KESC 3 (KLR) - (Explained) United Kingdom Metropolitan Properties Co (FGC) Ltd v Lannon and others  [1968] 1 WLR 815, DC — (Explained) Statutes Kenya 1. Appellate Jurisdiction Act (cap 9)  In general — (Cited) 2. Constitution of Kenya  articles 2(4); 10(2)(a)(b)(c); 22; 23(3)(f); 24; 25(c); 27(1); 47(1); 50(1)(2)(g) (h); 57; 58; 162(2)(a); 163(4)(a); 165(3)(b)(d); 171; 172(1)(c); 227; 232(7); 236(b); 237(7); 252(3)(b); 258; 259(8)(11) — (Interpreted) 3. Employment Act (Cap 226) sections 41, 43, 45 — (Interpreted) https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 9 4. Employment and Labour Relations Court Act (Cap 8E) section 12 (3) (vii) — (Interpreted) 5. Evidence Act (Cap 80)  sections 106, 107,108, 109 — (Interpreted) 6. Fair Administrative Action Act (Cap 7L) section 4(1)(c)(f)(g) — (Interpreted) 7. Judicial Service Act (Cap 8A) section 32; Schedule 3, paragraph 25  — (Interpreted) 8. Public Procurement and Asset Disposal Act (Cap 412C)  sections 46, 65, 80, 176, 177 — (Interpreted) Advocates Mr Jason Okemwa for the appellant. Mr Delbert Ochola for the respondent. JUDGMENT Representation: Mr. Jason Okemwa for the appellant (Okemwa & Co. Advocates) Mr. Delbert Ochola for the respondent (G & A Advocates LLP) A. Introduction 1. This appeal challenges the decision of the Judicial Service Commission, the respondent (the JSC), to terminate the services of the appellant, who until the termination, served in the judicial service as Principal Administration Ocer, on the grounds of gross misconduct. The main question in this appeal is whether the process leading to the appellant’s dismissal was lawful, in order to determine whether his constitutional right to fair administrative action guaranteed by article 47 of the Constitution, the Fair Administrative Action Act, the Judicial Service Act, and the Employment Act was violated. B. Background 2. The appellant was employed by the JSC as a Principal Administration Ocer and deployed in the Human Resource Directorate on permanent and pensionable terms. As part of his duties, the appellant was involved in the supervision of various outsourced security service providers in the Judiciary. On November 24, 2016, in that capacity and by dint of sections 46 and 80 of the Public Procurement and Asset Disposal Act (PPAD Act), the appellant was appointed to the Tender Evaluation Committee to consider Tender No. Jud/028/2016-17 on the provision of security in the Judiciary. The Tender Evaluation Committee completed its task and awarded the tender to Lavington Security Services Limited. It communicated this outcome to the other bidders. 3. One bidder, Eric Okeyo, t/a Bedrock Security Services Limited, was, however, dissatised with the outcome and led Application No. 111 of 2016 for review before the Public Procurement Administrative Review Board (the Board), alleging bribery by the appellant. By a ruling delivered on December 20, 2016, the Board recommended that the tender be re-advertised. It also found that the conduct of the appellant and another ocer in the procurement process had raised questionable integrity issues. For the latter reason, the Board directed the procuring entity (the Judiciary) to conduct investigations into the allegations against the two members of the tender committee, including the appellant. 4. Thereafter, on February 3, 2017, the Chief Registrar of the Judiciary wrote to the appellant conveying the recommendation of the Board for appropriate administrative action against him and one Fredrick Oboge. In his detailed response, the appellant denied all the allegations of impropriety. On April 12, 2017, a charge and interdiction issued by the Chief Justice was served on the appellant. The charge https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 10 contained two counts of gross misconduct. In count I, it was alleged that the appellant had met one of the bidders at a restaurant in Nairobi contrary to article 227 of the Constitution and section 65 of the PPAD Act; and in count II, that he had failed to declare to the Tender Evaluation Committee the fact of this meeting. Again, in his response of May 2, 2017, he denied the allegations. Disciplinary proceedings were conducted, the appellant was found culpable, and his employment terminated on March 27, 2019. C. Litigation History i. At the Employment and Labour Relations Court (ELRC) 5. Aggrieved, the appellant led ELRC Petition No. 50 of 2020, wherein he urged procedural unfairness, as well as unfair and unlawful termination. It was the appellant’s case that paragraphs 25(1-11) of the Third Schedule to the Judicial Service Act (JS Act) spell out a mandatory disciplinary procedure, and omission of any step invalidates the disciplinary proceedings. To the appellant, the JSC entirely disregarded paragraph 25 of the Third Schedule to the JS Act, as the Chief Registrar did not conduct an independent internal investigations into the appellant’s alleged gross misconduct; that at no time was the appellant questioned by the Chief Justice or the Judiciary Ombudsman before the disciplinary proceedings were commenced; and that no report prepared pursuant to any investigations or in support of the charges leveled against him was served on him. 6. In addition, the appellant contended that, the charge and interdiction were issued prematurely as the principal complainant (Eric Okeyo, hereinafter referred to as Okeyo) did not le an adavit or witness statement; that without any of these, the charge was unsupported; that without presenting Okeyo, the appellant was denied the opportunity to cross-examine him on his accusations; that the JSC presented two witnesses at the hearing, without recording and furnishing their statements to the appellant prior to the hearing; that there was no evidence that the appellant solicited for a meeting with any bidder; that conict of interest was not proved; and that the disciplinary panel introduced a fresh charge outside the charges communicated by the Chief Justice, namely that the appellant was biased. 7. For the reasons foregoing, the appellant urged the trial court to nd that the JSC had violated articles 2(4), 10(2), (a) and (c), 22, 23(f), 27(1), 47, 172(1) (c), 236(b), 237(7) and 258 of the Constitution; Sections 25(5); paragraphs 25 (1-11) of the Third Schedule to the JS Act; and sections 4(1) (c) (f) and (g) of the Fair Administration Act (FAA Act). 8. The appellant further prayed for a declaration that the charge, disciplinary proceedings, and subsequent decision to terminate his employment were unfair, unlawful, unconstitutional; and that the process violated the provisions of paragraph 25 (1-11) of the Third Schedule to the JS Act, sections 106, 107,108 and 109 of the Evidence Act, section 4 (1) (c) and 4 (4)(c) and (3)(g) of the FAA Act, articles 2 (4) 10(2)(a)(c), 27(1), 41, 47, 172 (1) (c), 236 (b) and 259 (11) of the Constitution, hence null and void ab initio. In addition, the appellant sought compensation for the alleged violation of his fundamental rights and freedoms, and an order directing his reinstatement or redeployment within the judicial service, without loss of salary, allowances, or accrued benets. 9. In response, the JSC maintained that the termination of appellant’s employment was lawful, fair, and procedurally sound; that the appellant’s petition failed to meet the established threshold of a constitutional petition. To support this, the JSC outlined the disciplinary process it undertook, which it asserted was conducted in accordance with the Regulations set out in Part IV of the Third Schedule to the JS Act. 10. The JSC explained, it commenced disciplinary proceedings against the appellant and his colleague following a recommendation by the Board; that by a letter dated February 3, 2017, the Chief Registrar https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 11 requested the appellant to explain his involvement in the disputed tender evaluation process; that the appellant responded, after which the matter was placed before the Chief Justice, who interdicted him pursuant to paragraph 16 of the Third Schedule. The appellant was subsequently served with a charge of gross misconduct under paragraph 25(1), the particulars being that, while serving on the Tender Evaluation Committee for Tender No. JUD/028/2016-2017(a), he met privately with one of the bidders outside oce premises and working hours, and that he failed to disclose this fact, thereby placing himself in a position of conict of interest. 11. According to JSC, it was only after the appellant failed to suciently exonerate himself that the Chief Justice referred the matter, along with the charge and response, to JSC for further action. The Human Resource Management Committee of JSC undertook investigations in line with paragraph 25(2), by inviting the appellant to a disciplinary hearing. At the hearing, two witnesses testied and were cross-examined by the appellant, who was also allowed to make representations. The committee subsequently submitted its report to JSC, with anding that the appellant was culpable on the two counts. The JSC, for its part, deliberated on the report, upheld the ndings by the committee, and issued a dismissal letter on May 27, 2019. The JSC informed the appellant of his right of review. In conclusion, JSC stated that, in view of the foregoing, the disciplinary process complied with all applicable constitutional and statutory provisions. 12. By a judgment dated June 18, 2021, the trial court (Rika, J.) framed four key issues for determination: the applicable law, procedural fairness, substantive fairness, and the appropriate remedies. On the applicable law, the court held that the Employment Act applied generally to all disputes arising from contracts of service, save for exceptions under section 3(2). It further found that the FAA Act was applicable to the JSC, noting that the Act covers both state and non-state actors exercising administrative or quasi-judicial functions under the Constitution or any written law. 13. Regarding procedural fairness, the trial court interpreted paragraph 25(3) of the Third Schedule to the JS Act as requiring that a committee or panel tasked with investigating allegations of misconduct and the one conducting the disciplinary hearing must be distinct. The Judge emphasized that while the Employment Act may not expressly mandate investigations, where an applicable written law provides for it, as in the instant case, such investigations must precede the disciplinary hearing. The court found the JSC’s process decient, particularly for failing to secure the attendance, testimony, or sworn written statement of the principal complainant and other key witnesses. This omission, according to the learned Judge, rendered the proceedings unfair. 14. On the question of substantive fairness, the court was of the opinion that, since the charges against the appellant were unsupported by evidence, the termination was, in eect, substantively unfair and in contravention of both statutory and constitutional provisions. Although the court acknowledged the violation of the appellant’s rights, it declined to award compensation in addition to reinstatement, nding that the latter was an adequate remedy in the circumstances. 15. Ultimately, the court allowed the petition, set aside the decision to dismiss the appellant, and accordingly granted the following reliefs: i. A declaration that the disciplinary proceedings and the decision to dismiss the appellant were unfair, unlawful, unconstitutional. ii. A declaration that the proceedings and dismissal violated sections 41, 43, and 45 of the Employment Act; Paragraph 25 of the Third Schedule to the Judicial Service Act; the Fair Administrative Action Act; and article 47 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 12 iii. An order directing the JSC to reinstate the appellant to the position of Principal Administrative Ocer, Human Resource Directorate, without loss of benets, allowances, or salary. iv. In the alternative, an order for the appellant’s re-engagement in a position equivalent to that of Principal Administrative Ocer, on the same terms and conditions; and The court did not award costs. ii. At the Court of Appeal 16. Aggrieved by the decision of the ELRC, the JSC lodged Civil Appeal No. E403 of 2021 in the Court of Appeal, anchored on thirteen grounds, among them: that the learned Judge erred in both law and fact by holding: that the Employment Act, the JS Act, and the FAA Act were the primary legal frameworks applicable to the dispute: that the appellant was right to bring a constitutional petition instead of a normal claim, and for holding that investigations under paragraph 25 of the Third Schedule to the JS Act were a mandatory prerequisite to a disciplinary hearing. The JSC further averred that the trial court failed to properly assess the appellant’s conduct, particularly his undisclosed meeting with a bidder during the procurement process. Moreover, the JSC argued, the trial court disregarded the legal eect of the Board’s ndings, improperly interfered with the internal processes of the JSC, and failed to appreciate that the disciplinary process complied with constitutional and statutory standards. The JSC further faulted the trial court for directing the appellant’s reinstatement without any legal basis. 17. On his part, the appellant led a cross-appeal, premised on a single ground: that the trial court erred in failing to award compensation in the form of damages for constitutional violations, as envisaged in article 23 of the Constitution, even after making a nding that his constitutional rights had indeed been violated. 18. In a judgment delivered on December 20, 2024, the Court of Appeal (Gatembu, Tuiyott & Gachoka, JJ. A) delineated ve issues for its determination; whether the appellant led the proper pleadings before the trial court; the procedural and lawfulness of the disciplinary proceedings; whether constitutional principles of fair hearing were upheld; whether the reasons for termination were valid; and whether the cross appeal was meritorious. 19. On the competence of pleadings, the learned Judges determined that the principles enunciated in Anarita Karimi Njeru v Republic [1979] eKLR were met as the appellant cited the relevant constitutional provisions he alleged to have been breached and detailed the particulars of such breach. 20. On the procedural and lawfulness of the disciplinary proceedings, the appellate court held that paragraph 16 of the Third Schedule of the JS Act gave the Chief Justice wide discretion to decide whether an inquiry ought to be conducted before instituting a disciplinary hearing. The paragraph, in the court’s view, does not impose a mandatory requirement that an inquiry be conducted rst. Instead, the court explained that the only requirement was for the Chief Justice to ensure that the constitutional principles of fair hearing are observed. 21. Regarding the question whether constitutional principles of fair hearing were upheld, the Court of Appeal found that the disciplinary process complied with the dictates of the Constitution, the FAA Act, Employment Act, JS Act and the JSC’s Human Resource Manual. The court was satised that, from the Board’s recommendation, the detailed charge and interdiction letter served on the appellant, together with his response, there was no doubt that the disciplinary hearing was conducted fairly and in accordance with the Constitution and the law. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 13 22. As to the reasons for termination, the court ruled that the appellant had exemplied gross misconduct by meeting a bidder during the tendering process. By doing so and failing to disclose this information to the Procurement Evaluation Committee presented a lawful and fair ground for the termination of his employment. Having so found, the court saw no merit in the cross appeal, which it dismissed. 23. In the result, the Court of Appeal allowed the JSC’s appeal, set aside the judgment of the ELRC, and substituted it with an order that the appellant’s amended petition before the ELRC was dismissed with costs. On the other hand, the appellant’s cross-appeal was likewise dismissed with costs. ii. At the Supreme Court 24. Aggrieved, the appellant has now led the instant appeal against the entire decision of the Court of Appeal on ve issues as follows: i. Whether the appellant was accorded fair trial and procedural fairness under articles 47 and 50 of the Constitution, section 4 of the Fair Administration Act, Judicial Service Act and the Employment Act, without evidence of the accuser, cross-examination or reports of the investigations. ii. What is the scope of the Chief Justice’s discretion under Paragraph 25(1) of the Third Schedule of the Judicial Service Act in conducting preliminary investigations, considering; a. The Chief Justice’s action is administrative and is constricted by articles 47 and 50. b. The Board’s ruling that the procuring entity carries out investigations, which investigations were not conducted. c. The Board was moved by a complainant, who was himself found to have falsied bid documents in contravention of sections 176 and 177 of the Public Procurement and Asset Disposal Act. d. A ruling by the Board made under Public Procurement and Asset Disposal Act cannot satisfy the requirements of a report under the Judiciary Service Act. e. The JSC’s policy is to act only after the Chief Justice’s investigations. iii. Did the Court of Appeal exceed its jurisdiction, contravening cannons of interpretation, infringe on the appellant’s fair trial rights, and usurp the Chief Justice’s and JSC’s mandate by introducing bias claims outside the charge and pleadings. iv. Whether the appellant’s failure to complain about non-service of documents was a waiver, afterthought, or acquiescence to rights violations, and whether the complainant’s non- cooperation, combined with the respondent’s failure to summon witnesses, justied limiting the appellant’s rights; and v. Did the court err by treating reinstatement and compensation of fundamental rights as substitutes, ignoring their distinct jurisdictions, causes of action and remedies and that compensation is not aimed at addressing economic harm. 25. The appellant seeks the following reliefs: i. The petition be allowed with costs; ii. A declaration that; https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 14 a. The appellant was denied a fair hearing without summons, evidence, and cross- examination of the accuser, inadequate notice, and lack of investigatory reports contravening articles 252(3), 47 and 50 of the Constitution, the Judicial Service Act, Fair Administration Act, and the Employment Act; b. That the Court of Appeal in paragraphs 57 and 58 exceeded its jurisdiction and violated the appellant’s right to fair trial under Articles 50 by introducing issues of alleged bias not raised in the Chief Justices charge, pleadings, submissions, trial court’s record, or notice to parties, rendering paragraphs 57 and 58 irregular, null and void; iii. The Court of Appeal judgment dated December 20, 2024in Civil Appeal No. 503 of 2019 Judicial Service Commissions v Eric Kamande be set aside; iv. The ELRC judgment dated June 18, 2021 in Petition No. 152 of 2018, Eric Kamande v Judicial Service Commission be reinstated, with variations to award damages to the appellant for violation of his fundamental rights; v. The Judiciary is ordered to compute and pay the appellant’s withheld salaries, with interest at court rates from May 2, 2017, within 30 days of this judgment. 26. In response, JSC has led a replying adavit sworn by Hon. Winfridah Mokaya, the Chief Registrar of the Judiciary (the CRJ), on March 10, 2025, in opposition to the appeal and armation of the Court of Appeal decision. In it, it is averred that the Court lacks jurisdiction to hear and determine the appeal under article 163(4)(a) of the Constitution on the grounds that the appeal does not raise matters involving constitutional interpretation or application; the procedure set out under paragraph 25 of the Third schedule to the JS Act was strictly upheld; and the appellant was granted full opportunity to be heard and to present his case. D. Parties’ Submissions i. Appellant’s Case 27. The appellant led submissions dated April 10, 2025, alongside rejoinder submissions dated April 9, 2025. He argues that the Supreme Court has jurisdiction under article 163(4)(a) of the Constitution because the appeal raises substantive issues concerning the interpretation and application of articles 47 and 50 of the Constitution. He asserts that the Court of Appeal itself framed the central issue as whether constitutional principles of a fair hearing had been observed. Its decision on the question directly implicates constitutional interpretation, thus anchoring the matter squarely within the Court's constitutional mandate. He further contends that the appeal also involves the interpretation of paragraphs 16 and 25(1)-(11) of the Third Schedule to the JS Act, which this Court in Law Society of Kenya v Attorney General & 4 [2023] KESC 19 (KLR) has armed to be a normative derivative of the constitutional principles under articles 171 and 172. 28. On the alleged contraventions of articles 47 and 50, the appellant submits that his rights to fair administrative action and a fair hearing were violated in multiple ways. He accuses the JSC of failing to summon the principal complainant, who was also the key witness, despite having the constitutional and statutory power to do so under article 252(3)(b) of the Constitution and sections 46 and 47 of the JS Act. This failure, he argues, denied him the constitutional right to cross- examine his accuser. He also faults the JSC for failing to conduct or produce investigation reports upon which the charges against him were based, as required by paragraph 25(9)-(11) of the JS Act, section 47(2) of the FAA Act, and article 50(2)(e) of the Constitution. Additionally, he cites violations of his rights under article 50(2)(g), https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 15 (h), and (k), that the JSC failed to provide adequate notice to his legal counsel; that it gave only eight (8) instead of fourteen (14) days hearing notice which was insucient under the Third Schedule; and that there was inordinate and unreasonable delay of 23 months in concluding the disciplinary process. Moreover, the appellant submits that article 25(c) guarantees the right to a fair trial as non-derogable and beyond limitation under article 24 of the Constitution. He asserts that administrative discretion or procedural exibility cannot override the rights under article 50 of the Constitution. 29. To support these submissions the appellant relies on this Court’s nding in Ethics and Anti-Corruption Commission & another v Ojienda, SC t/a Prof Tom Ojienda & Associates Advocates & 2 others [2022] KESC 59 (KLR) to the eect that the JSC as a quasi-judicial body has the power to summon and sanction attendance of proceedings before it; Loitiptip v Independent Electoral and Boundaries Commission & 2 others [2019] KESC 67 (KLR) to urge that article 50 mandates cross-examination for fairness; and Mutava v Tribunal Appointed to Investigate the Conduct of Joseph Mbalu Mutava (Petition 15 “B” of 2016 [2019] KESC 49 (KLR) to urge that the absence of the principal complainant leaves the charges against the ocer uncorroborated. We pause at this point to note that these three authorities, which are decisions of this Court, have erroneously been cited. They do not support the propositions presented. We would like to stress that before citing any authority to support a given argument, it is of utmost importance for counsel and parties before this Court, and indeed in any other court, to establish their accuracy and relevance in order to avoid misleading the court. 30. On JSC’s power to issue summons, the duty to conduct investigations and the discretionary powers of the Chief Justice, the appellant contends that JSC has the power under article 252(3)(b) of the Constitution to summon a witness, and was in breach of that duty when it failed to summon the principal witness. He cites Independent Electoral and Boundaries Commission v Chege [2023] KESC 74 (KLR) to arm the powers of all Chapter Fifteen Commissions and independent oces under the Constitution to summon witnesses. 31. It is the appellant’s further submission that paragraph 25(1) of the Third Schedule implies a mandatory step or duty to conduct investigations prior to initiating disciplinary proceedings. Contrary to this duty, the JSC merely relied on the Board’s ndings even though the Board had recommended that the procuring entity conduct further investigations. At any rate, the appellant urges, the Board’s pleadings and ruling were not produced in evidence or cited by the JSC in the disciplinary process. 32. On the introduction of unpleaded issues of bias, the appellant has challenged the Court of Appeal’s sua sponte introduction of judicial bias as an issue against a non-judicial ocer, claiming that it was not pleaded or argued by any party or addressed by the trial court and therefore fell outside the appellate court’s jurisdiction. Moreover, it was erroneous for the court to rely on the “real likelihood of bias” test rather than the more appropriate “fair-minded observer” test. 33. On whether the court erred in treating reinstatement and compensation of fundamental rights as substitutes, it is the appellant’s submission that the ELRC has jurisdiction to uphold and enforce the provisions of the Constitution under articles 22, 23, 162(2)(a), 165(3)(b),(d), and 258. He maintains that the two superior courts below erred by rejecting his claim for compensation for violations of his constitutional rights on the ground that he could not claim compensation and reinstatement in the same cause. Citing Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR) and Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR), he submits that while compensation serves as redress for constitutional violations, reinstatement restores an unlawfully terminated party to their former position. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 16 ii. Respondent’s Case 34. In its submissions dated April 2, 2025, the JSC challenges the jurisdiction of the Court to entertain the appeal as the appeal does not demonstrate, as required by article 163(4)(a) of the Constitution, how the Court of Appeal misinterpreted or misapplied the Constitution. The mere reference to articles 25, 47, and 50 by the superior courts below, cannot constitute their interpretation or application. To the contrary, according to the JSC, the issues raised relate to the enforcement of rights, not the interpretation or application of constitutional provisions. To that extent, the appeal does not meet the threshold established in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] KESC 9 (KLR). 35. On the alleged contraventions of articles 47 and 50, the JSC maintains that the appellant received both procedural and substantive fairness during the disciplinary proceedings. It asserts that the appellant was given sucient notice to respond to the charges he faced. He was served with charges on April 12, 2017, responded on May 2, 2017, and the hearing was held in June 6, 2018, a period of nearly one year after his response; and that no prejudice was shown to have been suered. It concedes that the principal complainant was indeed summoned twice but failed to appear, and as a quasi-judicial body, the JSC could not compel his attendance in the same way a court of law or investigative agency would. The JSC contends that even in the absence of this witness, the Board had suciently evaluated the evidence against the appellant and expressed concern over his integrity; that in any event the appellant, by his own admission, conceded meeting with the complainant outside the work premises, after oce hours and during the tender evaluation period, thereby breaching section 65 of the PPAD Act. 36. On the JSC’s power to issue summons, the duty to conduct investigations and the discretionary powers of the Chief Justice, it contends that under paragraph 25 of the JS Act, the use of the word “may” indicates discretion, not compulsion. The Chief Justice, therefore, had the discretion to determine whether an inquiry was necessary based on the specic facts. It cites the persuasive decision of the Court of Appeal in Cooperative Bank of Kenya v Banking Insurance & Finance Union [2016] eKLR, where it was held that the use of the word “may” imports a discretionary rather than a mandatory meaning. 37. On the introduction of unpleaded issues of bias, JSC maintains that the Court of Appeal merely applied established legal standards to facts already on the record. The reference to perceived bias was a legitimate evaluation of the appellant’s conduct in relation to his role in the procurement process. 38. Finally, on whether the court erred in treating reinstatement and compensation of fundamental rights as substitutes, the JSC contends that the appellant’s rights were fully respected during the disciplinary proceedings, and no cause was presented to warrant his reinstatement or an award of compensation. E. Issues For Determination 39. Having considered the pleadings, the impugned judgment, and the parties’ respective submissions and arguments presented by counsel before the court, in our considered view, the following four issues fall for the nal determination of this appeal: i. Whether this court has jurisdiction to determine the appeal under article 163(4)(a) of the Constitution; ii. Whether the termination of the appellant’s employment was substantively and procedurally fair in accordance with the Constitution and the law; iii. Whether the Court of Appeal erred in introducing and determining the issue of judicial bias, which was not pleaded or argued by the parties; and https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 17 iv. Whether the appellant was entitled to both reinstatement and compensation. F. Analysis And Determination i. Whether this Court has jurisdiction to determine the appeal under Article 163(4)(a) of the Constitution. 40. Under article 163(4)(a) of the Constitution, an appeal lies to the Supreme Court as of right in any case that involves the interpretation or application of the Constitution. The appellant contends that the issues central to this appeal directly implicate articles 47 and 50 of the Constitution, which were considered and applied by both the trial court and the Court of Appeal. In addition, he invokes the application of paragraph 25 of the Third Schedule to the JS Act, which he asserts derives from and operationalizes the constitutional principles under articles 171 and 172 of the Constitution. 41. The JSC, on the other hand, maintains that the jurisdiction has been improperly invoked; that while the ELRC and the Court of Appeal made reference to articles 47 and 50, they did not interpret or apply those provisions; that the question before the courts was the enforcement of the provisions; and that the two articles were not in real contention. 42. The courts in this country have consistently armed in a long line of cases, like Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR) and the seminal pronouncement in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), that jurisdiction is the lifeblood of judicial authority; without it, a court acts in vain and the resultant decision is worthless, with no legal eect. In Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another (supra) and Joho & another v Shahbal & 2 others, (Petition 10 of 2013) [2014] KESC 34 (KLR), this Court crystallized the test for jurisdiction under article 163(4)(a): it must be demonstrated that the issues in dispute involved a constitutional question that was subject of judicial determination by interpretation or application in the courts below. 43. Applying that test to the present matter, a perusal of the appellant’s petition before the ELRC discloses that the appellant pleaded violation of articles 2(4), 10(2)(a)(c), 27(1), 47, 172(1)(c), 232(7) and 236(b) of the Constitution. In determining the dispute, the ELRC interpreted articles 47 and 252(3)(b) of Constitution having satised itself that the petition met the threshold in Anarita Karimi Njeru v Republic (supra) for petitions led under the Constitution seeking the enforcement of the Bill of Rights. For its part, the Court of Appeal framed as a core issue, “whether the respondent observed constitutional principles for a fair hearing,” and in its judgment, the Court of Appeal directly addressed the answer to the question, engaging not merely in mechanical enforcement but in substantive application of articles 47 and 50. Moreover, the appellant’s case raises broader questions concerning the procedural safeguards under article 50, including the right to cross-examination and the obligation to conduct investigations prior to disciplinary proceedings, all of which were not only pleaded and argued but also formed the basis of the reasoning in the two judgments. These are not peripheral procedural complaints; they strike at the core of how constitutional fair trial guarantees are applied in quasi-judicial proceedings. 44. In light of the foregoing, and consistent with this Court’s jurisprudence, we are persuaded that the appeal falls within the ambit of article 163(4)(a) and therefore the Court has jurisdiction to entertain it. The objection as to the jurisdiction of the Court is, for these reasons, overruled. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 18 ii. Whether the termination of appellant’s employment was procedurally and substantively fair in accordance with the Constitution and the law. 45. The appellant moved to the ELRC to challenge the disciplinary process leading to his dismissal for the following reasons: that JSC disregarded paragraph 25 of the Third Schedule to the JS Act, as the Chief Justice did not conduct internal investigations on the allegations against him; that the charge and interdiction were prematurely issued; that the principal complainant did not le an adavit or witness statement, neither did he present himself before the JSC; the JSC’s two witnesses did not record statements and if they did the appellant was not served; that the JSC withheld important evidentiary material and particulars of the charge; that there was no evidence that the appellant solicited for a meeting with any bidder; that conict of interest was not proved; and that the disciplinary panel introduced a fresh charge outside the charges communicated by the Chief Justice, namely, that the appellant was biased. These complaints, in our considered view, can be clustered into two categories: those relating to the inquiry by the Chief Justice; and those relating to the disciplinary hearing by the JSC. 46. To begin with, the discipline of judicial sta as an administrative action by the JSC, is subject to provisions of articles 47 and 50 of the Constitution. All appointments, disciplinary and removal proceedings of judicial ocers and sta are governed by section 32 of the JS Act as read with the Third Schedule to that Act. 47. Although Shollei v Judicial Service Commission & another [2022] KESC 5 (KLR), concerned the administrative disciplinary procedure against a judicial ocer, the guiding principles enunciated by the Court in the passage below apply with equal force to judicial sta: “ Guiding principles on disciplinary proceedings before Judicial Service Commission. a. The JSC shall comply with the procedure set out in article 47 of the Constitution and the Fair Administrative Actions Act. b. JSC shall always give an employee reasonable time to defend himself or herself. c. An employee shall be informed the basis of complaint(s) or who his or her accusers are to enable the employee defend themselves. d. JSC shall furnish an employee with details of allegations against him or her. e. JSC must always be clear from the start whether the administrative action against an employee is of an investigatory nature or of a disciplinary nature. Should an investigatory process turn into a disciplinary one, an employee must be accorded fresh notice to prepare his/her defence. f. An employee should be accorded a public hearing if he/she desires to have one. A decision to decline such a request must be accompanied with reasons which shall be given to the employee. g. An employee shall be given detailed reasons for any administrative action/ decision by JSC. h. An employee should access and receive any relevant documents relating to his/ her matter. Any decision to the contrary must be accompanied by a written reason. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 19 i. An employee shall be accorded opportunity to attend proceedings, in person or in the company of an expert of his/her choice. j. An employee undergoing disciplinary proceedings shall be given an opportunity to call witnesses, be heard; cross examine witnesses; and request for an adjournment of the proceedings upon providing good reasons and where necessary to ensure a fair hearing”. 48. The rst category of the appellant’s complaint is that the JSC disregarded paragraph 25 of the Third Schedule to the JS Act, as the Chief Justice did not investigate the matter internally. He maintains that at no time was the appellant investigated and questioned by the Chief Justice, the CRJ or the Judiciary Ombudsman; that there was no report in support of the charges leveled against him; that JSC failed to conduct its own independent investigations, as recommended by the Board, and instead relied solely on the Board’s ruling. 49. For the full tenure and extent of paragraph 25 of the Third Schedule to the JS Act, it is reproduced here below in extenso because the appeal turns on it: “ 25. Proceedings for dismissal 1. Where the Chief Justice, after such inquiry as they may think t to make , considers it necessary to institute disciplinary proceedings against an ocer on the ground of misconduct which, if proved, would in the Chief Justice‘s opinion, justify dismissal, he shall frame a charge or charges against the ocer and shall forward a statement of the said charge or charges to the ocer together with a brief statement of the allegations, in so far as they are not clear from the charges themselves, on which each charge is based, and shall invite the ocer to state, in writing should he so desire, before a day to be specied, any grounds on which he relies to exculpate themselves. 2. If the ocer does not furnish a reply to the charge or charges within the period specied, or if in the opinion of the Chief Justice he fails to exculpate themselves, the Chief Justice shall cause copies of the statement of the charge, or charges, and the reply, if any, of the ocer to be laid before the Commission, and the Commission shall decide whether the disciplinary proceedings should continue or not. 3. If it is decided that the disciplinary proceedings should continue, the Commission shall appoint a Committee or Panel to investigate the matter consisting of at least three persons who shall be persons to whom the Commission may, by virtue of the Constitution, delegate its powers: Provided that the Chief Justice shall not be a member of the Committee or Panel, but if puisne judge of the High Court have been designated as members of the Commission under the Constitution, they may be members of the Committee or Panel. https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 20 4. The Committee or Panel shall give the ocer a written notice of not less than fourteen days specifying the day on which they may be required to appear before it to answer to the charges made against them. 5. If witnesses are examined by the Committee or Panel, the ocer shall be given an opportunity of being present and of putting questions on their own behalf to the witnesses , and no documentary evidence shall be used against the ocer unless he has previously been supplied with a copy thereof or given access thereto. 6. The Director of Public Prosecutions shall, if requested by the Commission, direct a legally qualied ocer from the Oce of the Director of Public Prosecutions to present to the Committee or Panel the case against the ocer concerned. 7. The Committee or Panel shall permit the accused ocer to be represented by an advocate. 8. If during the course of the investigation, grounds for the framing of additional charges are disclosed, the Chief Justice shall follow the same procedure adopted in framing the original charges. 9. The Committee or Panel, having investigated the matter, shall forward its report thereon to the Commission together with the record of the charges framed, the evidence led, the defence and other proceedings relevant to the investigation; and the report of the Committee or Panel shall include— a. a statement whether in the Committee or Panel’s judgment the charge or charges against the ocer have been proved and the reasons therefor; b. details of any matters which, in the Committee or Panel’s opinion, aggravate or alleviate the gravity of the case; and c. a summing up and such general comments as will indicate clearly the opinion of the Committee or Panel on the matter being investigated, but the Committee or Panel shall not make any recommendation regarding the form of punishment to be inicted on the ocer. 10. The Commission, after consideration of the report of the Committee or Panel, shall, if it is of the opinion that the report should be amplied in any way or that further investigation is desirable, refer the matter back to the Committee or Panel which shall conduct the investigation for a further report. 11. The Commission shall consider the report and shall decide on the punishment, if any, which should be inicted on the https://new.kenyalaw.org/akn/ke/judgment/kesc/2025/48/eng@2025-08-15 21 ocer or whether he should be required to retire in the public interest.” [Emphasis added]. 50. According to the appellant, under paragraph 25(1) the Chief Justice was under an obligation to conduct a preliminary inquiry before framing charges against him. Secondly, the appellant blames the committee appointed under paragraph 25(3) by JSC for failing to conduct its own internal independent investigations as required by paragraphs 25(9)-(11) of the JS Act. 51. What then is the role of the Chief Justice under paragraph 25(1)? Does that role require the Chief Justice, as demanded by the appellant, to conduct an inquiry or investigation into allegations of impropriety or misconduct before framing charges and forwarding the charges to the ocer? Our plain reading of the paragraph is that there are four stages to be undertaken by the Chief Justice in the dismissal proceedings against an ocer, all encapsulated in paragraph 25(1) and (2). First, the Chief Justice must conduct an inquiry; second, frame and forward the charge or charges to the ocer, third, invite the ocer to state his or her case; and fourth, if the ocer fails to respond or responds but does not exculpate himself or herself, the Chief Justice’s nal role is to lay the charges and response, if any, before the JSC for its consideration and decision. 52. The opening sentence in paragraph 25(1) that; “where the Chief Justice, after such inquiry as they may think t to make…”, in our opinion does not impose any mandatory duty on the Chief Justice to conduct any investigations, so long as from the information or material provided to him or her, the Chief Justice considers it necessary to institute disciplinary proceedings against the ocer concerned. The use of phrases like “may think t”, “considers it necessary”, and “in the Chief Justice’s opinion” conveys a sense of discretion. In the exercise of that discretion, the Chief Justice is required to ensure that each of the four stages is fair and in accordance with the constitutional principles of a fair hearing. 53. This view is consistent with our previous pronouncement in the case of Karani v Judicial Service Commission (Petition 3 of 2021) [2022] KESC 37 (KLR), where we interpreted the powers of the Chief Justice under paragraph 25(1) as follows: “ (79) Contrary to submission by the appellant, the Chief Justice is not required to carry out an investigation. Rather, as rule 25 provides, the Chief Justice carries out an inquiry. We also take note that rule 16 which empowers the Chief Justice to interdict, makes no reference to an investigation,