Authored By: Nasinya Nairuko Letiyion
CASE TITLE: Kamande v Judicial Service Commission [2025] KESC 48 (KLR)
CITATION: [2025] KESC 48 (KLR)
COURT NAME: Supreme Court of Kenya
DATE OF JUDGMENT: 15th August 2025
PARTIES INVOLVED
Appellant: Kamande was an employee of the Judicial Service Commission
Respondent: The Judicial Service Commission (JSC) in Kenya is an independent body established by the Constitution to promote and facilitate the independence, accountability, and efficiency of the Judiciary.
FACTS OF THE CASE
This appeal challenged 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 Officer, 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.
The appellant was employed by the JSC as a Principal Administration Officer and deployed in the Human Resource Directorate on permanent and pensionable terms. As part of his duties, the appellant was involved in supervision of various outsourced security service providers in the judiciary. In that capacity, the appellant was appointed to the Tender Evaluation Committee to consider a Tender 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.
One bidder, was however, dissatisfied with the outcome and filed an application for review before the Public Procurement Administrative Review Board (the Board), alleging bribery by the appellant. The Board recommended that the tender be re-advertised. It also found that the conduct of the appellant and another officer 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.
Thereafter, the Chief Registrar of the Judiciary wrote to the appellant conveying the recommendation of the Board for appropriate administrative action against him and his colleague. In his detailed response, the appellant denied all the allegations of impropriety. On 12th April 2017, a charge and interdiction issued by the Chief Justice was served on the appellant. The charge 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 2nd May 2017, he denied the allegations. Disciplinary proceedings were conducted, the appellant was found culpable, and his employment terminated on 27th March 2019.
Aggrieved, the appellant filed a petition, wherein he urged procedural unfairness, as well as unfair and unlawful termination.
In addition, the appellant contended that, the charge and interdiction were issued prematurely as the principal complainant did not file an affidavit or witness statement; that without any of these, the charge was unsupported; that without presenting the principal complainant, 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 conflict 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.
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.
ISSUES FOR DETERMINATION
- Whether this Court has jurisdiction to determine the appeal under Article 163(4)(a) of the Constitution;
- Whether the termination of the appellant’s employment was substantively and procedurally fair in accordance with the Constitution and the law
- Whether the Court of Appeal erred in introducing and determining the issue of judicial bias, which was not pleaded or argued by the parties
- Whether the appellant was entitled to both reinstatement and compensation.
ARGUMENTS OF THE PARTIES
Appellant’s Case
The appellant argued 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. the appellant submits that his rights to fair administrative action and a fair hearing were violated in multiple ways. He accused 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. 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.
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 findings 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.
On the introduction of unpleaded issues of bias, the appellant challenged the Court of Appeal’s sua sponte introduction of judicial bias as an issue against a non-judicial officer, 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.
On whether the court erred in treating reinstatement and compensation of fundamental rights as substitutes, the appellant submitted that the ELRC has jurisdiction to uphold and enforce the provisions of the Constitution
Respondent’s Case
The JSC challenged 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. 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 Vs Kenya Breweries Ltd & Another [2012] KESC 9 (KLR).
On the alleged contraventions of Articles 47 and 50, the JSC maintained that the appellant received both procedural and substantive fairness during the disciplinary proceedings. It asserts that the appellant was given sufficient notice to respond to the charges he faced.
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 sufficiently 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 office hours and during the tender evaluation period, thereby breaching Section 65 of the PPAD Act.
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 specific facts.
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.
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.
JUDGEMENT /FINAL DECISION
The court allowed the petition.
The court further decided the following:
- The Judgment of the Court of Appeal set aside in respect of its findings that the appellant was properly, fairly and lawfully terminated from employment.
- That the disciplinary proceedings were inconsistent with Article 172(1)(c) of the Constitution, violated Articles 47(1) and 50(1) of the Constitution, Section 32 of the JS Act and the Third Schedule to the JS Act. Consequently, the termination of the appellant’s services was unprocedural, unfair, unlawful and in violation of the Constitution.
- 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.
- The respondent shall pay the appellant all withheld salary from the time of interdiction on 12thApril 2017 to the date of this judgment
- The respondent shall bear the costs of this appeal.
- That the sum of Kshs. 6,000/- deposited as security for costs upon lodging of the appeal, be refunded to the depositor.
LEGAL REASONING / RATIO DECIDENDI
In regards to whether this Court has jurisdiction to determine the appeal under Article 163(4)(a) of the Constitution, the court held that : “The courts in this country have consistently affirmed in a long line of cases, like Macharia & another Vs Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR) and the seminal pronouncement in Owners of the Motor Vessel “Lillian S” Vs 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 effect. In Lawrence Nduttu & 6000 others Vs Kenya Breweries Ltd & Another (supra) and Joho & another Vs Shahbal & 2 others, (Petition 10 of 2013) [2014] KESC 34 (KLR), the 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.
In light of the foregoing, and consistent with the Court’s jurisprudence, the court was 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 was, for these reasons, overruled.
On the second issue, whether the termination of appellant’s employment was procedurally and substantively fair in accordance with the Constitution and the law, the court referred to The right to a fair hearing firmly rooted in Article 50(1) of the Constitution, which states that; “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.”
The conclusion of the court was that the JSC fell short of its mandate set out in Article 172(1)(c) of the Constitution, Section 32 of the JS Act, 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 Constitution. The court also found that the JSC violated the appellant’s right to fair administrative action under Articles 47(1) and 50(1) of the Constitution on account of 23 months’ delay without justification.
On the third issue, Whether the Court of Appeal erred in introducing and determining the issue of judicial bias, which was not pleaded or argued by the parties, the court recognized that The Court of Appeal relied on the well-established principle from Metropolitan Properties Co (FGC) Ltd Vs Lannon and Others (supra) to illustrate, in the context of the meeting of appellant and a bidder, the “reasonable apprehension of bias” test. While that case dealt with a judge, the principle it enunciates applies equally to judicial officers and extends to administrative and quasi-judicial officers, including members of tender evaluation committees. These bodies, like courts of law, perform functions requiring impartiality and transparency. The perception of bias in a procurement process directly implicates the fairness and integrity of public procurement.
In view of this determination, the court came to the conclusion that 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 officer. Its intervention was consistent with constitutional principles and common law doctrines of fairness and natural justice, which are the central questions in the dispute. The court found no merit in the appellant’s arguments and that the ground of appeal, must therefore, fail.
In regards to whether the appellant was entitled to reinstatement and compensation, in deciding what remedy to issue, the court considered public policy, the interests of society as a whole as against the victim’s interest. Similar sentiments were in Musembi & 13 others Vs Moi Educational Centre Co. Ltd & 3 others, (Petition 2 of 2018) [2021] KESC 50 (KLR) where the judge 8stated that; “… Quantification of damages in such matters does not present an explicit consideration of the issues; other issues such as public policy considerations also come into play. A Court obligated and mandated in evaluating the appropriate awards for compensation in constitutional violations does not have an easy task; there is no adequate damage standard.”
The court reiterated that what is sought in this prayer is the exercise of judicial discretion. Secondly, constitutional remedies are not compensatory or punitive but are meant to vindicate the rights violated; a declaration of a violation of a right per se may be sufficient vindication; and that public policy is a key factor to be taken into consideration. The ELRC reinstated the appellant to the position of Principal Administrative Officer without any loss of salary, allowances, or benefits. In the alternative, the appellant was to be re-engaged in a position equivalent to that of Principal Administrative Officer, on the same terms and conditions. Taking into consideration that the appellant’s employment was terminated on 27th March 2019 and the judgment having been delivered on 18th June 2021, reinstatement was an available remedy, and the ELRC properly made the order for reinstatement.
Having declared, first, that the appellant’s fundamental rights were violated; second, that he is entitled to reinstatement or re-engagement without loss of benefits; that he is entitled to payment of back-salaries, allowances and benefits, it was the court’s humble view that an award of compensation, given these circumstances, would be superfluous.
Reference(S):
Macharia & another Vs Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR)
Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)
Lawrence Nduttu & 6000 others Vs Kenya Breweries Ltd & Another (supra)
Joho & another Vs Shahbal & 2 others, (Petition 10 of 2013) [2014] KESC 34 (KLR)
Metropolitan Properties Co (FGC) Ltd Vs Lannon and Others (supra)
Musembi & 13 others Vs Moi Educational Centre Co. Ltd & 3 others, (Petition 2 of 2018) [2021] KESC 50 (KLR)
