Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
FEATURE CASE
3. Moreover, nothing could take away the court’s inherent power to do justice. To allow the respondents’ preliminary
objection would not inspire confidence and good sense in the administration of justice. Justice demanded that the
Court should dismiss the objection.
4. Kenya’s legal system is primarily intended or designed to give effective remedies and reliefs whenever the
Constitution of Kenya is threatened with violation. As a part of reasonable, fair and just procedure to uphold the
constitutional guarantees, the right to a fair trial entails a liberal and dynamic approach and not rigid and rudimental
ways in order to ensure the grievances of an individual are addressed by the court no matter the name and the identity
of the transgressor.
5. When the law imposes on the Executive legally prescribed duties and responsibilities the performance of which
depends upon the enhancing or handling of public interest, the political officers of the executive must act according
to the laws of the land. If public officers including the President fail to act, and their failure harms the interests of the
public and rights of individual citizens, their actions or omissions are subject to judicial review.
6. The immunity from civil and criminal proceedings given to the President under section 14 of the Constitution cannot
be absolute and is only meant to protect the interest of the wider citizens who have a stake in the presidency or who
have elected the president to be the symbol of unity and protection of collective and individual rights of all citizens. The
rationale for official immunity applies where only personal and private conduct by a president is at issue. It means that
there shall be no case in which any public official can be granted any immunity from suit from his unofficial acts.
7. The spirit and intention of the Constitution did not impose a blanket immunity that a sitting President cannot be
sued for failing to observe the law or failing in his responsibility to do an act. A sitting President can be subjected to a
process of a court when there is a clear violation of fundamental rights and environmental issues. If a sitting president
pertinently and grossly contravenes a clear provision of the Constitution, he cannot be shielded from the intervention
of the court by way of judicial review or declarations under section 84 of our Constitution.
8. A party affected by the decision of a sitting president can rightly and legitimately seek the intervention of the High
Court for redress or remedy by way of judicial review or by way of constitutional declaration. A constitutional office
holder who is wrongly or illegally sacked by a sitting President can approach the High court by way of judicial review
for redress.
9. Judicial review proceedings are neither civil nor criminal proceedings and therefore cannot possibly fall within
the ambit of section 14(2) of the Constitution and are therefore excluded from the protection afforded therein to the
President against civil proceedings.
10. In so far as the President appointed the tribunal and in so far as he was not a party to the Judicial Review
proceedings, the Court was not in a position to say there was an omission that was directly committed by the president
the case at hand.
11. While the Chief Justice was immune from suit for matters directly related with exercise of his judicial functions,
in making the representation to the President for the appointment of a Tribunal to investigate a judge under section
62(5) of the Constitution, the Chief Justice does not exercise a judicial function but a constitutional and administrative
function as the head of the Judiciary, for which he would be amenable to the supervisory jurisdiction of the High
court and to judicial review orders. In the exercise of his constitutional mandate, the Chief Justice is amenable to the
supervisory jurisdiction of the High Court.
12. Counsel assisting the Tribunal was not a member of the Tribunal as he had not been gazetted as such. He was not
an authority, public or quasi-judicial body to make a decision in the matter affecting the applicant. He did not investigate,
make a report and/or make an order against the respondent. His role was to assist and he remained a servant of the
tribunal in the performance of its mandate. He was therefore wrongly and improperly joined into the proceedings.
13. A judge may only be removed from office in accordance with section 62 of the Constitution. Corruption or related
complaints against a judge is a factor that there exists circumstances that would make him unable to perform his
constitutional functions as a judge. A Judge can be removed from office by the President if the question of his removal
has been referred to a tribunal and the tribunal has recommended to the President that the judge ought to be removed
from office for inability or for misbehavior.
14. Under section 61(2) of the Constitution, a Judge is appointed after the President has received the advice of the
Judicial Service Commission (JSC) that a person is fit and competent to hold the office of a Judge. When a question
arises as to the removal of a Judge, it is essential to seek and obtain the advice, guidance, contribution and direction of
the same body that gave the advice to the President that it was okay to employ him in the first instance. Since the Chief
Justice as the Chairman of the JSC had mandated the Ringera Committee to conduct investigations into the conduct of
judicial officers, the JSC ought to have been the first branch that ought to have authorized the next step.
15. The role of the JSC would be to determine whether the act complained about is of the nature and degree to
qualify as misconduct sufficient to set in the processes that may lead to an adverse representation being made to the
President. Such an examination would include seeing and hearing the complainant and the Judge separately for that
would serve to inform and enhance a balanced and proper evaluation of the circumstances that has arisen which is
likely to lead to removal of a Judge.
Issue 12: April-June 2010 33