Judges, employer at odds over complaint resolution approach

A judgment by the Employment and Labour Relations Court is likely to intensify the push to remove Supreme Court judges from office.

Justices Stephen Radido, Christine Baari, and Dr. Jacob Gakeri ordered the Judicial Service Commission (JSC) to re-examine a preliminary objection raised by Justice Hellen Wasilwa regarding its powers to entertain complaints about judges based solely on the merits of their judgments.

The three judges stated that it is now an agreed-upon principle that the commission cannot assess a judge's competence by only analysing their decisions.

They noted that Justice Wasilwa had raised this issue with the commission, but it remained unresolved, adding that the commission should weigh both the legal merits and its powers before deciding whether to require a judge or magistrate to respond.

Several cases have been filed before the commission seeking the removal of Chief Justice Martha Koome, her deputy Philomena Mwilu, and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaona, and William Ouko.

The primary issue concerns their decision to ban lawyer Ahmednasir Abdullahi and his law firm from appearing before them, after they repeatedly disparaged the court.

Ahmednasir filed a case before the East Africa Court of Justice (EACJ), arguing that he was denied the right to a fair hearing in the Supreme Court.

At the same time, a separate case is before the High Court, where the judges argue that the lower court cannot reopen its decision, as it was ratified by the court’s ruling.

Lawyer Nelson Havi has also filed a petition against Justice Lucas Naikuni regarding his judgment in a land dispute.

Following the Labour Court's ruling, all eyes will now be on the commission, particularly in terms of how it will determine whether it can revisit a judgment or ruling without considering external factors.

According to Justices Radido, Baari, and Gakeri, if a petition for a judge’s removal reaches a certain threshold, the JSC should call the judge to respond to the complaint and decide whether to dismiss it.

They stated that this is a critical stage, as the judge is given an opportunity to argue whether the commission has the power to entertain the complaint.

“The overriding principle is that a judge is immune, as long as their conduct does not deliberately prevent parties in litigation from enjoying their rights as guaranteed by law,” they said.

In this case, Justice Wasilwa raised an objection based on an appeal that involved the same case. She also argued that she was performing her judicial functions, which the commission could not review.

The three judges noted that the JSC could not ignore or overlook the objections raised. They added that the commission should first address the questions at hand to determine whether it would dismiss the complaint.

Judges Radido, Baari, and Gakeri asserted that failure to determine whether the commission had the authority to consider a complaint is a fatal issue, which is contrary to the law.

"The failure of the respondent to consider and decide (or disclose the reasons for) the threshold challenges raised by the petitioner constituted a fundamental legal error, not in line with the right to fair administrative action as contemplated by Article 47 of the Constitution and the Fair Administrative Action Act,” the trio ruled.

In the case, Justice Wasilwa had delivered a ruling on January 18, 2022, in the case involving the Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) against Tea Hotel management and three others.

Following her ruling, Kemboi Chambers Advocates filed a complaint on behalf of the Tea Hotel employees, accusing the judge of misconduct in how she handled the proceedings.

The JSC wrote to the judge on October 5, 2022, requesting her response to the claims. However, she informed them that she was away on official business and had only received the request on the same day.

Fast forward to December 16, 2023, when Justice Wasilwa filed a case against the commission, arguing that the JSC had violated the law by considering a complaint based solely on her decisions.

According to her, there was no evidence that the decision was influenced by incapacity, incompetence, or corruption.

She argued that the complaint violated her immunity regarding anything done or omitted in good faith in the lawful performance of her duties.

Justice Wasilwa requested the court to dismiss the proceedings before the JSC. The commission objected, arguing that the court had no powers to entertain the case.