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 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.

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.

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.