Justice Hellen Wasilwa of Employment and Labour Relations Court at a past event.
Justice Hellen Wasilwa has secured a reprieve in her battle with the Judicial Service Commission (JSC) over an ongoing ouster petition.
This is after a court directed JSC to consider and decide the legal questions raised by the judge in the dispute.
The ouster petition filed at JSC in May 2022 stemmed from Justice Wasilwa's ruling on the sale of the Tea Hotel Kericho by way of public auction to enable footing of workers' dues amounting to Sh51.4 million.
Determining a case filed by the Judge challenging how the JSC was handling the petition, the court declared that JSC committed a fundamental legal misstep by failing to determine the objections raised by the judge before proceeding to hearing the complaint lodged against her.
The verdict was delivered by a three-judge bench comprising justices Stephen Radido, Christine Baari and Dr Jacob Gakeri.
They said "the process taken by the JSC was tainted by a fundamental legal misstep" and this amounted to violation of the right to fair administrative action guaranteed under Article 47 of the Constitution and the Fair Administrative Action Act.
"The JSC did not give Judge Wasilwa any response on her threshold objections or inform her how, when or whether the objections would be determined. JSC proceeded as if no threshold objections had been raised. These objections went to the question of whether the Commission had the jurisdiction to entertain the complaints," ruled the judges faulting the JSC, their employer.
They stated: "JSC ought to have determined the threshold objection raised by the Judge before proceeding to consider the substantive complaint".
In her objection to the JSC proceedings, Judge Wasilwa claimed witch-hunt and indicated that the complainants had filed an appeal at the Court of Appeal, hence "proceeding to prosecute appeal before the Court of Appeal and the JSC is an abuse of the court process". She said she discharged her duty as a judge in good faith.
Accused of misconduct
The battle at JSC concerns a petition lodged by the firm of Kemboi Chambers Advocates, on behalf of purchasers and former employees of Tea Hotel Kericho accusing the judge of misconduct in the way she handled a dispute at the Employment and Labour Relations court.
The law firm petitioned JSC, which is chaired by the Chief Justice, to conduct investigations with a view to have Justice Wasilwa removed from the office of a Judge.
JSC on October 5, 2022 wrote to the Judge informing her that it had deliberated on the complaint and asked her to respond to the complaint within 21 days. The Commission then formed a panel to review the complaint with the directions that it hears the parties and make recommendations.
The hearing process never took off due to multiple adjournments caused by foreign travel and bad health on the part of the judge and her advocate. Eventually, the Commission on January 10, 2024 and the parties were directed to file and exchange their written arguments.
Justice Wasilwa lodged a petition dated December 16, 2023, in court alleging that the proceedings before the JSC emanated from her exercise of judicial functions, and therefore her right as a judge to judicial independence were under threat.
She further contended that her rights to fair labour practices and fair administrative action as underscored by Articles 41 and 47 of the Constitution had been jeopardised.
She argued that JSC lacked the legal authority to entertain a Petition or complaint which challenges the validity of a decision of a judge exercising his or her judicial authority.
Judge Wasilwa said that upon receipt of the complaint, she responded to JSC saying that "the complainants had an option to seek for review if indeed I had made a mistake on cancelling their sale.
They had an opportunity to show that the sale was valid by producing any evidence they had before me. They chose not to". She sits at the Employment and Labour Relations court.
In her responses, the Judge raised a legal and competency foundational questions as to whether the Commission had the legal jurisdiction to entertain the complaint.
"The complainants have since filed an Appeal before the Court of Appeal. It is my view that they are now seeking to prosecute their Appeal through JSC which should not be the case. Since the matter is pending before the Court of Appeal, it would also be a miscarriage of justice for me to comment on the said matter further and I therefore rest my case and request the JSC to consider my response and disregard the complaints against me as mere witch hunt and clear me of the said complaints accordingly," she said.
JSC had opposed the court case and filed a response setting out how it processed the complaint.
