Nancy Makokha Baraza v Judicial Service Commission & 9 others [2012] eKLR

Key Facts

Issues

• What should be the composition of a tribunal formed to investigate the conduct of the Deputy Chief Justice under Article 168 of the Constitution and whether the Tribunal constituted to investigate the conduct of the Petitioner herein conforms with the Constitution.
• What is the role of the Commission in the process of removal of a Judge as provided under Article 168 of the Constitution and whether the Commission adhered to its mandate to the letter.
• Whether the Commission has the power to delegate some of its functions to a sub committee and the effect thereof.
• Whether the Petitioner was exposed to double jeopardy.
• Who should bear the costs of this petition.
• Whether the principles of separation of power were observed.
• Whether the Petitioner's legitimate expectations have been violated, infringed or threatened.
• Whether the rules of natural justice were observed.
• Whether the Petitioner was exposed to a process which is unconstitutional, unfair, unlawful, illegal and discriminatory.
• Whether the Gazette Notice No. 664 dated 26th January 2012 is unconstitutional and illegal.
• Whether the level of publicity generated by the incident can be such as to render a fair trial of the issues herein impossible or improbable.
• Whether the decision to send the petition to the President is contrary to the principle of proportionality.

Holdings

• The court ruled that the Gazette Notice No. 664 of 26th January 2012 was partially invalid due to the inclusion of the phrase 'including but not limited to,' which expanded the tribunal's mandate beyond the allegations reviewed by the JSC. This portion was struck out to align the tribunal's scope with the Commission's petition.
• The court found that the Judicial Service Commission (JSC) did not commit any errors or omissions in its process of evaluating allegations against the Petitioner, and its actions were constitutional and procedural. The JSC's decision to recommend the establishment of a tribunal was deemed valid under Article 168 of the Constitution.
• The court concluded that the Petitioner's allegations of bias, media influence, and procedural unfairness lacked sufficient evidence. It emphasized that the JSC's role was limited to evaluating complaints, not conducting trials, and the Petitioner's rights to cross-examination and procedural fairness were not breached at this stage.
• The court dismissed claims of gender discrimination, noting the subcommittee investigating the Petitioner included three women commissioners and a female secretary, and found no empirical evidence of discriminatory treatment.
• The court determined that the composition of the tribunal formed to investigate the Petitioner's conduct under Article 168(5)(b) was constitutionally sound and did not violate the Petitioner's rights. The distinction between the Chief Justice and Deputy Chief Justice removal procedures was upheld as justified by the Constitution.

Remedies

Legal Principles

• The court reviewed the JSC's decision to suspend the Petitioner and appoint a tribunal, finding it lawful under Article 168(4). It rejected claims that the JSC acted ultra vires but held that the President's inclusion of 'including but not limited to' in the Gazette Notice was ultra vires Article 168(5).
• The court analyzed whether the JSC adhered to the rules of natural justice. It found the Petitioner was given an opportunity to respond to allegations and that the subcommittee's findings were evaluated by the full Commission before recommending action to the President.
• The court emphasized that the Constitution is the supreme law of the land and must be interpreted in a manner that promotes its purposes, values, and principles, advances the rule of law, and contributes to good governance. It held that any law inconsistent with the Constitution is null and void.
• The court examined the Petitioner's legitimate expectations regarding her right to a fair administrative process, including access to the subcommittee report and cross-examination of witnesses. It concluded the JSC satisfied these requirements by allowing her to present her case and deliberate independently.
• The court addressed whether the Judicial Service Commission (JSC) overstepped its authority by conducting quasi-judicial inquiries into the Petitioner's conduct. It affirmed the JSC's constitutional mandate to evaluate complaints and initiate removal proceedings but stressed the need for adherence to procedural independence.

Precedent Name

• Ridge vs. Baldwin
• Republic of Kenya and Another vs. Coastal Aquaculture
• James v Commonwealth of Australia
• Evan Rees and Others vs. Richard Alfred Crane
• Barnwell vs. Attorney General
• In the matter of Lady Justice Roselyn Naliaka Nambuye versus The Chief Justice and 5 others
• Kanda vs. Government of Malaysia
• Justice Alliance of South Africa vs. President of The Republic of South Africa and Others
• Minister of Health and Others vs. Treatment Action Campaign and Others
• Van Rooyen and Others vs. State and Others
• Barnard and Others vs. National Dock Labour Board and Others
• R vs. Horsham Justice, Ex Parte Farquhason

Cited Statute

• Constitution of the Republic of Kenya
• Public Officer Ethics Act
• Judicial Service Act, No. 1 of 2011
• Evidence Act
• Judicial Service Code of Conduct and Ethics

Judge Name

• George Odunga
• Hellen Omondi
• Mohammed Warsame

Passage Text

• 124. Dr. Khaminwa has argued that once we find that one part of the said Gazette Notice is unreasonable we have no powers to strike out that portion but to strike out the whole Gazette Notice. Mr. Muite, however, submitted that we have the powers to only strike out the unnecessary words and leave the rest of the Notice intact.
• 127. Now, having considered all the grounds raised by the Petitioner and the response by the respondents, we think that the issues raised cannot entitle the Petitioner to the orders sought, in particular the Commission did not commit any errors or omissions in the manner in which it conducted the inquiry which is the subject of our determination.
• 71. Article 168(4) provides that the Judicial Service Commission shall consider the petition and, if it is satisfied that it discloses a ground for removal under clause (1), send the petition to the President. From the provisions of Article 168 it is clear that the proceedings for removal of a judge may be initiated only by the Judicial Service Commission.