Supreme Court affirms the decision of the Tribunal that recommended the removal of Justice Said Juma Chitembwe from judicial service.
Headnote: The Kenyan Judicial Service Commission (JSC) initiated removal proceedings against a High Court judge following public circulation of audio and video recordings. These recordings suggested unethical conduct and a conflict of interest in the judge's professional duties. The judge contested the evidence's admissibility, alleging violations of privacy rights and entrapment. The Supreme Court found that the JSC had appropriately followed procedural requirements in initiating removal proceedings. It also ruled that the judge's actions breached the Judicial Code of Conduct and Ethics, supporting the decision for the judge's removal. The case underscored the balance between privacy rights and judicial accountability.

Chitembwe v The Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court (Petition E001 of 2023) [2023] KESC 114 (KLR) (28 December 2023) (Judgment)
Neutral Citation: [2023] KESC 114
Supreme Court of Kenya
MK Ibrahim, SC Wanjala, NS Ndungu, I Lenaola, and W Ouko, SCJJ
December 28, 2023
Reported by John Ribia
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Judicial Officers – petition for the removal of a judge – mandate of the Judicial Service Commission – mandate of the Tribunal – mandate of the Supreme Court - whether the Judicial Service Commission was obligated to conclusively determine the validity of allegations against a judge before recommending the initiation of removal proceedings - whether a Tribunal formed to consider a petition for the removal of a judge had the jurisdiction to enquire in to the activities/proceedings of the Judicial Service Commission - whether the Supreme Court in an appeal against the decision of a Tribunal formed to consider a petition for the removal of a judge had the jurisdiction to determine whether the JSC in its proceedings violated the rights of the appellant - Judicial Service Act, (Act No 1 of 2011) sections 15, 19(4), 31(5), 32, 42, 45; and, part VIII; Schedule 2; Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (Act No 1 of 2011 sub leg) regulations 9, 11(3)(b), 13(1)(a), 14(1)(3),15, 16, 17, 18, 19, 20, 21(1)(c)(d)(e)(h), and 30; Penal Code (cap 63) section 15.
Judicial Officers – petition for the removal of a judge – applicable principles - standard of proof - what standard of proof applied in a petition for the removal of a judge - what principles did the Supreme Court apply when dealing with the question of removal of a judge – Constitution of Kenya, 2010, articles 10, 31(d), 50(4), 73, 74, 75(1), 160(5), 165, 168(2), 172, and 252(1)(3); Judicial Service Act, (Act No 1 of 2011) sections 15, 19(4), 31(5), 32, 42, 45; and, part VIII; Schedule 2; Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (Act No 1 of 2011 sub leg) regulations 9, 11(3)(b), 13(1)(a), 14(1)(3),15, 16, 17, 18, 19, 20, 21(1)(c)(d)(e)(h), and 30; Penal Code (cap 63) section 15.
Judicial Officers – professional ethics – conflict of interest – duty to declare conflict of interest – duty to recuse oneself in a matter involving a property that they had interest in - whether a judicial officer who presided over a case involving property in which they had an interest had the duty to recuse themselves from the matter - whether the failure of a judicial officer to recuse himself/herself from a case in which he/she had a vested interest in the property in dispute in the case was a breach of the Judicial Code of Conduct and Ethics and of the Constitution - Judicial Service Act, (Act No 1 of 2011) sections 15, 19(4), 31(5), 32, 42, 45; and, part VIII; Schedule 2; Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (Act No 1 of 2011 sub leg)regulations 9, 11(3)(b), 13(1)(a), 14(1)(3),15, 16, 17, 18, 19, 20, 21(1)(c)(d)(e)(h), and 30; Penal Code (cap 63) section 15.
Judicial Officers – judicial immunity – scope - whether judicial immunity covered actions conducted in bad faith outside judicial duties - Judicial Service Act, (Act No 1 of 2011) sections 15, 19(4), 31(5), 32, 42, 45; and, part VIII; Schedule 2; Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (Act No 1 of 2011 sub leg)regulations 9, 11(3)(b), 13(1)(a), 14(1)(3),15, 16, 17, 18, 19, 20, 21(1)(c)(d)(e)(h), and 30; Penal Code (cap 63) section 15.
Judicial Officers – role – duties – mediation - whether a judge of the High Court of Kenya had the authority to conduct mediation over a case in which they had presided.
Criminal Law – entrapment – conditions where entrapment could occur – where one claimed to be entrapped by persons not in law enforcement - under what conditions can entrapment occur - whether individuals without law enforcement authority, such as private citizens, were capable of committing entrapment.
Law of Evidence – electronic evidence – audio and video recordings – audio and video recordings of a conversation that were recorded covertly by a party to the conversation - whether covertly recorded audio and video recordings that were recorded by a party engaged in the said conversation was admissible - whether a judicial officer who publicly addressed covertly recorded audio and video recordings relinquished their right to privacy - whether evidence on the authenticity of audio and video recordings could be doubted in the absence of counter-evidence challenging their genuineness - Evidence Act (cap 80) section 5, 106B; Constitution of Kenya, 2010, article 50(4).
Constitutional Law – fundamental rights and freedoms – right to privacy– audio and video recordings of a conversation that were recorded covertly by a party to the conversation – where the audio recordings implicated a judicial officer for being unethical – where the judicial officer defended themselves against the recordings in public media - whether a judicial officer who publicly addressed covertly recorded audio and video recordings relinquished their right to privacy - whether the intrusion into an individual’s privacy was proportionate to the public interest to be served by the intrusion – Constitution of Kenya, 2010, article 31
Words and Phrases – entrapment – definition - a law enforcement officer’s or government agent’s inducement of a person to commit a crime, by means of fraud or undue persuasion, in an attempt to cause a criminal prosecution against that person - Black’s Law Dictionary; 10th Edition

Brief Facts:
The petitioner was the single presiding judge in the succession cause, where the suit property was the main subject matter of the recordings. In November 2021, Judicial Service Commission’s (JSC) attention was drawn to several video clips, social media posts, and cell phone recordings that were in the public domain. The recordings were attributed to Hon. Mike Sonko (former Governor of Nairobi) (Hon. Sonko) and appeared to question the integrity of the petitioner, a judicial officer. The recordings revealed that the petitioner had a vested interest in the suit properties. Hon Sonko was the main petitioner in the consolidated petitions, in which the petitioner was the presiding judge in a bench of three judges. Four complaints were filed against the petitioner with the JSC and later withdrawn. Due to the persistence of the allegations and because of the intense public interest elicited by recordings and social media postings, JSC resolved to initiate, on its own motion, proceedings for the removal of the petitioner from office.
Satisfied that the material and evidence placed before it disclosed prima facie grounds for the removal of the petitioner, JSC unanimously resolved to petition the President to appoint a Tribunal pursuant to article 168(4) and (5) of the Constitution. The Tribunal once formed and after considering the matter recommended the removal of the petitioner from judicial service. It was that process that the petitioner challenged, first before the Tribunal and before the Supreme Court.
The petitioner contended that the evidence in support of the six (6) allegations seeking his removal from office were obtained in contravention of his rights to privacy and therefore inadmissible. The petitioner contended that the recordings were interfered with and manipulated to meet a certain narrative. The petitioner further contended that the video and audio recordings were inadmissible for having been obtained in a deliberate scheme of entrapping him. The petition sought for the Supreme Court to overturn the decision of the Tribunal that recommended his removal from judicial service.
Mr Jirani was a person well known to the petitioner while Hon Sonko was both well-known to and a distant relative of the petitioner.

Issues:
  1. What principles did the Supreme Court apply when dealing with the question of removal of a judge?
  2. Whether the Judicial Service Commission was obligated to conclusively determine the validity of allegations against a judge before recommending the initiation of removal proceedings.
  3. Whether a Tribunal formed to consider a petition for the removal of a judge had the jurisdiction to enquire in to the activities/proceedings of the Judicial Service Commission.
  4. Whether the Supreme Court in an appeal against the decision of a Tribunal formed to consider a petition for the removal of a judge had the jurisdiction to determine whether the JSC in its proceedings violated the rights of the appellant.
  5. What standard of proof applied in a petition for the removal of a judge?
  6. Whether judicial immunity covered actions conducted in bad faith outside judicial duties.
  7. Whether a judicial officer who presided over a case involving property in which they had an interest had the duty to recuse themselves from the matter.
  8. Whether the failure of a judicial officer to recuse himself/herself from a case in which he/she had a vested interest in the property in dispute in the case was a breach of the Judicial Code of Conduct and Ethics and of the Constitution.
  9. Whether a judge of the High Court of Kenya had the authority to conduct mediation over a case in which they had presided.
  10. Whether the decisions of a judge made in the course of the discharge of judicial function could be questioned by the Judicial Service Commission or by the Tribunal in a petition for the removal of a judge.
  11. Whether covertly recorded audio and video recordings that were recorded by a party engaged in the said conversation was admissible.
  12. Whether a judicial officer who publicly addressed covertly recorded audio and video recordings relinquished their right to privacy.
  13. Whether the intrusion into an individual’s privacy was proportionate to the public interest to be served by the intrusion
  14. Whether evidence on the authenticity of audio and video recordings could be doubted in the absence of counter-evidence challenging their genuineness.
  15. Under what conditions can entrapment occur?
  16. Whether individuals without law enforcement authority, such as private citizens, were capable of committing entrapment.
Held:
  1. When dealing with the question of removal of a judge, the Supreme Court considered the following principles:
    1. as the first and only appellate court in matters of the removal of a judge, the Supreme Court had a more expansive jurisdiction since, it was required to re-evaluate and re-assess the evidence on record in order to establish whether the Tribunal misdirected itself leading to a wrong conclusion.
    2. Judges were presumed to be independent and to act without the control of anyone in deciding cases before them.
    3. Judges should always ensure that their conduct was beyond reproach in the eyes of a reasonable observer. They must always uphold the principle that justice must not only be done but be seen to be done
    4. Once the President had received a petition from the Commission, he was constitutionally bound to appoint a Tribunal.
    5. The standard of proof, whether in direct or circumstantial evidence, was one which was neither beyond reasonable doubt nor on a balance of probabilities.
  2. An appeal to the Supreme Court under article 168(8) of the Constitution, could be likened to a primary appeal, affording the court broader authority to scrutinize and reassess the evidence presented. The process aimed to validate the accuracy of the Tribunal’s findings regarding the application of factual matters to the law, even as the court acknowledged the Tribunal’s firsthand assessments of witnesses’ credibility. The court would exercise that authority to overturn factual conclusions with caution and would only do so if it was demonstrated that the Tribunal’s conclusions were not supported by evidence or if it was evident that the Tribunal failed to appreciate the weight or bearing of circumstances admitted or proved, or if the Tribunal was plainly wrong in its conclusion.
  3. There were only two routes to initiate the removal of a judge. By the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission. Article 168(4) of the Constitution provided that a petition to the Judicial Service Commission (JSC) must be in writing, setting out the alleged facts constituting the grounds for the judge's removal. Upon receipt of the petition or upon considering the question of removal of a judge on its own motion.
  4. The standard to be attained before the petition was sent to the President was entirely subjective, depending on the material placed before the JSC. Whether the petition was filed by a person or where the JSC was in possession of some information, regardless of the source, pointing to a questionable conduct of a judge, it must consider the petition or the information and satisfy itself that the complaint disclosed facts constituting grounds for the judge’s removal. The JSC was expected to evaluate the facts and only if it was satisfied that a ground or grounds for removal had been disclosed will it recommend to the President to constitute a Tribunal. The JSC was not simply a conduit pipe by which complaints were channeled to the President. It must be convinced that the complaint disclosed prima facie evidence against the judge and that the complaint was serious enough to warrant a representation to the President.
  5. In considering whether a ground for removal had been disclosed, and being concerned only with prima facie evidence, the JSC was not required or expected to make definitive conclusions whether the allegations against the judge had been proved. It was expected to act in good faith, to accord the judge an opportunity to understand the accusations and to be guided by the provision of article 47 of the Constitution on the fair administrative action. It could not be the JSC’s mandate to conduct a full-fledged inquiry, with witnesses being cross-examined. That was a preserve of the Tribunal where the actual hearing took place. The course in which the JSC initiated the petition was perfectly permitted by the force of article 168(2) of the Constitution.
  6. The Tribunal’s jurisdiction was founded on article 168(7)(b) of the Constitution, as read with section 31 of the Judicial Service Act (JS Act) and the Second Schedule thereto. The Tribunal was mandated to a clear, specific constitutional jurisdiction restricted to inquiring into the matter and reporting on the facts in connection with the allegations made by the JSC. That jurisdiction was pointed and specific. It did not include an inquiry into the activities of or proceedings before the JSC. It was informed solely by the request made by the JSC.
  7. Just like jurisdiction was everything for a court of law, it was equally critical for a tribunal or any administrative body exercising quasi-judicial authority. Similarly, like a court of law, a tribunal could only exercise jurisdiction donated by statute or the Constitution. Since the Tribunal in the instant proceedings was a direct creation of a petition presented to the President, it would be an act of overreach for it to interrogate events that took place before its appointment. It had no such powers.
  8. The proceedings before the JSC took the following form:
    1. JSC initiated removal proceedings on its own motion based on the allegations regarding the conduct of the petitioner.
    2. Thereafter, JSC set up a committee of its members to consider its own motion alleged transgressions of the petitioner.
    3. The petitioner was informed of the allegations against him and furnished with the petition, witness statements, and evidence supporting the proceedings.
    4. The petitioner was represented by an advocate of his own choice.
    5. The Committee conducted its investigations and recorded witness statements.
    6. The petitioner was given ample time to prepare his defence and to respond to the allegations in the petition.
    7. The petitioner’s response to the petition being a preliminary objection was considered and determined.
    8. The Committee reported its findings to JSC who in turn submitted a petition to the President.
  9. In conducting the proceedings, JSC was performing a quasi- judicial function. If the petitioner felt aggrieved by the conduct of the proceedings before JSC, which in his view amounted to a violation of his rights and fundamental freedoms, his recourse was not to the Tribunal that would be formed many months later but to the High Court, which had jurisdiction to determine questions of whether a right or fundamental right has been denied, violated, infringed, or threatened under article 165(3)(b) of the Constitution.
  10. The principles laid down by the Court in Shollei v Judicial Service Commission & another (Petition 34 of 2014) [2022] KESC 5 (KLR) (17 February 2022) (Judgment) (Shollei case) involving disciplinary proceedings against the former Chief Registrar of the Judiciary, cannot be applied in the proceedings involving a judge. While the principles enunciated in the Shollei case were based on the provisions of section 32 of the JS Act, as read with regulation 25 of the third schedule to the Act (Provisions relating to the Appointment, Discipline and Removal of Judicial Officers and Staff), the instant proceedings were initiated under article 168(2) of the Constitution as read with section 31 of the JS Act. The two processes had very distinct considerations, one unique to a Judge and the other to a judicial officer.
  11. The JSC ensured that the proceedings before it were conducted in consonance with the Constitution and the law, upholding the rules of natural justice and respecting the petitioner’s constitutional rights. There was no basis upon which to conclude that the JSC violated the petitioner’s right to fair administrative action, nor can we fault the Tribunal for rejecting the invitation to interrogate the proceedings before the JSC.
  12. The import of article 160(5) of the Constitution (judicial immunity) was that a member of the judiciary was accorded judicial immunity for anything done or omitted to be done in good faith and in the lawful performance of a judicial function. The Constitution used two key phrases: anything done or omitted to be done in good faith and in the lawful performance of a judicial function. The use of the two phrases was not idle but deliberate. Only things done by a judge in good faith and in the lawful discharge of the function of judicial office would merit protection. The antithesis to acting in good faith would be to act in bad faith, where a person acts dishonestly in the discharge of the functions of a judicial office. Bad faith will be implied when the office-bearer had acted with a clear intent to deceive. That privilege would also be extended only when the action was done lawfully and in the performance of judicial duties. It was not available for acts done by a judge, or a judicial officer who were out on frolics of their own, going beyond the confines of what would normally be regarded as their judicial function. From a plain and textual reading of article 160(5) of the Constitution, and section 6 of the Judicature Act, judicial immunity was not absolute nor did it cover improper conduct aimed at furthering personal interests.
  13. The basic principles of judicial independence under the Constitution required, among other safeguards, that judges ought to enjoy absolute freedom from liability in respect of decisions taken in their judicial function, just as their security, remuneration, conditions of service, pensions, and the age of retirement are secured by the Constitution and the law. To that extent, judges were guaranteed tenure of office until attainment of retirement age; and, barring that, they could be removed only for specified reasons; incapacity or behaviour and other grounds that rendered them unfit to discharge their duties.
  14. Section 45 of the JS Act protected judicial officers from any personal culpability. They were not liable for any civil action or suit arising from anything done or omitted to be done in good faith. In the Penal Code too, in section 15, a judicial officer was not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions. Section 6 of the Judicature Act made a similar provision to insulate a judge and judicial officer, so long as they acted in good faith and within the confines of the law.
  15. The Tribunal was well aware of its limits of jurisdiction. An excerpt of the Hansard indicated that the Tribunal had to guide the lead counsel not to venture into asking the petitioner questions that would suggest the Tribunal was interrogating the merits of the petitioner’s decision or questioning the manner of his exercise of judicial discretion which impacts the decisional independence of the court.
  16. The petitioner had a long-standing relationship with Hon Sonko. He met him at his private residence and held discussions which were intended to assist Hon Sonko in the appeal challenging the decision to uphold his impeachment by the High Court. There was direct evidence by those who were in the meeting, including Hon Sonko himself, that the petitioner advised him on the possible grounds of appeal. Secondly, he met and once again advised Hon Sonko, Mr Jirani, and Mr Askar on the prospects of withdrawing Malindi Civil Appeal No 32 of 2018 to pave way for the finalization of the transaction for the sale of the suit properties. Those actions accord the petitioner protection under the principles of judicial immunity, when they were clearly outside and in excess of the judge’s mandate as a trial Judge.
  17. Judges did not entertain parties whose cases were pending or had been determined by them; they did not invite litigants into the privacy of their homes; and they did not discuss those cases or what steps to take to advance to the next level. A judge was an impartial arbiter with no personal interest in the outcome of a case he/she tried. A judge could not decide a case impartially if his/her mind was mired in benefiting from the subject matter of the case. Regulation 19 (1) of the The Judicial Code of Conduct and Ethics prohibited a judge from anticipating a future benefit from the performance of the duties of the judicial office or from proceedings before the judge. To be involved in a transaction of the subject matter of a case pending before or determined by a judge, was outside the ambit of lawful performance of judicial function. It was an act of bad faith.
  18. Regulations 11 (1) of the Judicial Code of Conduct and Ethics required judges to discharge the official duties, act honourably and in a manner befitting the judicial office. A judge must ensure that his or her personal and extrajudicial activities were not in conflict with the obligations of a judicial office.
  19. The Supreme Court could not find fault with the Tribunal’s conclusion considering the admitted relationship between the petitioner and Hon Sonko and the former’s failure to disclose the same to the Hon Chief Justice, his colleague Judges on the bench, and the parties. The petitioner’s conduct divested him of any claim to protection under the principles of judicial immunity.
  20. Article 50(4) of the Constitution established a dual threshold for evidence to be excluded. The evidence must have been obtained in a manner that violated any right or fundamental freedom. Second, the admission of the evidence would render the trial unfair or detrimental to the administration of justice. Therefore, for the video and audio recordings to be found to be inadmissible for violating article 31 as read with article 50(4), the petitioner was required to demonstrate that his rights were unjustifiably violated in the manner that evidence was obtained and that their admission rendered the proceedings unfair or detrimental to the administration of justice.
  21. The contents of the video and audio recordings produced before the Tribunal were intended to demonstrate three things: the petitioner discussing with Hon Sonko among others, the proposed sale of the suit property which had been the subject of succession proceedings before him in Malindi Succession Cause No 97 of 2015; the petitioner discussing the possible withdrawal of an appeal against his decision in the said succession matter, Malindi Civil Appeal No 32 of 2018; and the petitioner discussing with hon Sonko who was the main petitioner in the consolidated petitions, in which his impeachment as a governor was the subject, and possible grounds of appeal against the decision rendered by a three-judge Bench of the High Court over which the petitioner presided. Furthermore, in the KTN News interview that took place on November 18, 2021 in which the petitioner made various concessions and admissions, inter alia that both Mr Jirani, a person alleged in the video recordings to hold the suit property on his behalf, as well as Hon Sonko, were his relatives or were persons personally known to him.
  22. The right to privacy was not absolute. A person’s privacy extended to those aspects in which a legitimate expectation of privacy could be harboured. The right to privacy could never be absolute and a balancing test had to be applied to determine whether the intrusion into an individual’s privacy was proportionate to the public interest to be served by the intrusion, in the instant case, the recordings.
  23. It was the petitioner who invited the team to his private residence where the recordings took place. He was recorded discussing cases that involved third parties and land transactions involving parties not necessarily his relatives. Those recordings were made public by Hon Sonko on his social media platforms bringing the conduct of the petitioner as a Judge into question. Four petitions were filed but later withdrawn. There was public interest generated by the posts; a judge recorded discussing matters that were either before him or which he had handled, with parties in some of those cases and third parties. The judge himself appeared on a live show on a national television to admit some of the allegations. Under article 172 of the Constitution, some of the functions of the JSC included the promotion and facilitation of the independence and accountability of the judiciary and the efficient, effective, and transparent administration of justice. The original petitions having been withdrawn, was the JSC could not be rendered impotent, in the discharge of its functions and in light of the circumstances of recordings and televised show. As it ought to in the circumstances, the JSC in terms of article 168(2) initiated on its own motion the removal process culminating in the instant proceedings.
  24. By willingly discussing the matters in question with parties and third parties and on a public forum, being a live television interview, the petitioner voluntarily removed the issue from the private realm to a public platform. He could not now claim that the evidence was obtained in a manner that violated any of his rights or fundamental freedoms.
  25. Though the video and audio recordings were covertly recorded, they were recorded by participants in the conversations. The persons depicted in the recordings were at the petitioner’s residence with his permission, and the discussions therein, that flowed effortlessly were of interest both to the petitioner and his visitors. The recordings were made by parties who were privy to the transactions over the suit properties. There was no claim that a third party was involved in the recordings that would render the recordings inadmissible.
  26. The audio and video recordings produced did not contravene the petitioner’s right to privacy under article 31. Their admission into evidence did not render the inquiry before the Tribunal detrimental to the administration of justice in contravention of article 50(4) of the Constitution.
  27. For entrapment to be committed, there must be authorities, law enforcement officers or government agents involved, and they must have provided an opportunity for the commission of a crime. That was not the case in the instant proceedings of the subject of this petition. The recordings were procured by the petitioner’s relatives and acquaintances. Even in the absence of the recordings, there was independent and direct evidence of persons who were present and participated fully in the recorded conversation. Those present testified as to who they were and what their engagements were in different sectors of the economy. None of them was a government agent or an enforcement officer. Hon Sonko testified that he was the immediate former Governor of Nairobi City County, Mr Askar testified that he was the consul of Nepal in Kenya for the past ten years. Mr Kivuva described himself as a businessman and Mr. Jirani described himself as a farmer and land broker. Entrapment in the strict sense of the word did not occur. Judicial response to entrapment was based on the need to uphold the rule of law. A person entrapped will be excused, not because he was less guilty of the offence he may have committed as a result, but because of the inappropriate behavior of the law enforcers. State-created crime was not only unacceptable but also improper. The allegation that the recordings were obtained in a deliberate scheme to entrap the petitioner could not stand.
  28. The petitioner did not call expert evidence to controvert the evidence the expert witness, a certified digital forensics examiner, who examined the recording devices and prepared a Memorandum and two separate Certificates of Authenticity. The evidence of the two witnesses on authentication of the recordings was intended to demonstrate to the Tribunal that there was a reasonable probability that the recordings were what they purported to be, a meeting of people in the recordings and the subjects of discussion. It was for the Tribunal to determine that it was reasonably probable that there was no material alteration of the evidence. the Tribunal was justified in rejecting the allegation of manipulation. The ground therefore lacked basis and was rejected.
  29. Removal proceedings, though quasi- judicial were not in the nature of criminal proceedings. Such proceedings did not require or depend on criminal culpability to succeed. All that was required was that the allegations be substantiated. The standard of proof in removal proceedings was an intermediate one; neither beyond reasonable doubt nor on a balance of probabilities, with the burden of proof being on the assisting counsel to bring proof to the required standard in proof of the alleged misconduct. Once the assisting counsel has discharged the legal burden by providing sufficient evidence, the evidential burden would normally shift to the Judge on matters which are peculiarly within the Judge’s knowledge.
  30. The petitioner had an interest in the suit property and for which Mr Jirani fronted him. The petitioner personally and keenly followed and directed the intended sale of the suit property to Mr Askar in a transaction involving Hon Sonko. Judicial impartiality was a significant element of justice. In order to maintain impartiality where there was a likelihood of conflict of interest, the proper thing to do was to recuse oneself and let the dispute be resolved by another impartial judge, because no person shall be a judge on a case in which they had interest. Justice must not only be done but seen to be done. Regulation 20 (1) of the Code of Conduct enjoined judges to use the best efforts to avoid being in situations where personal interests conflict or appeared to conflict with the judge’s official duties. The petitioner had a sua sponte duty to recuse himself from the case, or to disclose the nature of the interest in the matter. For failing to opt for any of the two routes, and instead proceeding to sit to the end of the case, the petitioner was in breach of articles 10, 50(1), 75, 232 of Constitution, and regulations 9, 19, 20 and 21 of the Judicial Code of Conduct and Ethics. There was no fault in the conclusion reached by the Tribunal.
  31. The petitioner conducted himself in a manner that demonstrated a singular lack of integrity by engaging parties who were litigants before him contrary to articles 10, 73(2)(b), 75(c) of the Constitution as well as regulations 11(3)(a) and (b), 17(3), 20, 21 and 30 of the Judicial Code of Conduct and Ethics. The Tribunal properly directed itself on the evidence and arrived at the correct conclusion that the allegation under that ground was established to the required standard.
  32. It was as ridiculous as it was absurd for the petitioner to argue that he did not offer advice on Malindi Succession Cause No 97 of 2015 but acted purely as a mediator. As a judge of many years, the petitioner obviously knew that what he was engaged in was not mediation but an act of subversion of justice. A judge who made a decision in a contested case could not purport to mediate without all the parties before him, in his private house and with strangers. His singular interest was in the suit property and how to end the pending appeal in order to complete the transaction and receive and share the proceeds of sale. The petitioner was prohibited by regulations 30 of the Judicial Code of Conduct and Ethics from using a third party or proxy to do what he knew if done by him would constitute a contravention of the Judicial Code of Conduct and Ethics. The petitioner’s conduct amounted to a lack of accountability, involvement in corrupt practices, and impropriety contrary to Articles 10, 73, and 75 of the Constitution, and regulations 13(1)(a), 14(1)(a), 14(1)(b), 14(3), and 30 of the Judicial Code of Conduct and Ethics.
  33. The petitioner was engaged in the subversion of justice by commenting on pending cases and suggesting to a litigant, possible points for the challenge of the judgment arising from the consolidated petitions contrary to article 75(c) of the Constitution, and regulation 18 of the Judicial Code of Conduct and Ethics. His conduct, apart from being unprofessional was also unbecoming of a judge and contravened articles 73 of the Constitution as well as regulations 15, 16(a), (b), (c) and 17(3) of the Judicial Code of Conduct and Ethics.
  34. Though there was no obligation in removal proceedings to prove each and every allegation, in the instant case the Tribunal, found proof in all the six allegations against the petitioner. No material had been placed before the court to warrant the Supreme Court’s interference with the conclusions reached by the Tribunal.
  35. The robe magnifies the conduct. Judges must be held to higher ethical standards if they were to keep the trust and confidence of the people they serve. The Judicial Code of Conduct and Ethics was formulated from the provisions of article 168(1)(b) of the Constitution enjoined judges to preserve the integrity of the judiciary and to avoid even the appearance of impropriety.
  36. Generally, the decisions of a judge made in the course of the discharge of judicial function could not be questioned except through judicial review or appeal, and a judge was not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.
  37. So important was judicial independence that removal of a judge could only be justified where the shortcomings complained of were of such a serious nature as to destroy the confidence in the judge’s ability properly to perform the judicial function. Gross misconduct or misbehaviour as grounds for removal of a judge was an expression of something very serious.
  38. The proceedings before the Tribunal were not criminal in nature and therefore not subject to a standard of proof beyond reasonable doubt.
Appeal dismissed.
Orders:-
  1. The Tribunal’s finding that the petitioner’s conduct was in breach of the Judicial Service (The Judicial Code of Conduct and Ethics) Regulations 2020 and amounted to gross misconduct contrary to article 168(1) (b) and (e) of the Constitution was affirmed.
  2. The Tribunal’s recommendation to the President for the petitioner’s removal from office under article 168(1)(e) of the Constitution was affirmed.
  3. No orders as to costs.
  4. The security for costs was to be refunded to the petitioner.


Kenya Law
Case Updates Issue 042/23-24
Case Summaries
JURISDICTION As a general rule, the Supreme Court could not entertain appeals on interlocutory decisions where the substantive matter was still pending before the superior courts.

Headnote: the main issue in question was whether the Supreme Court had jurisdiction to entertain an appeal against an interlocutory decision of a superior court, where the substantive matter was still pending. The court held that as a general rule, the Supreme Court could not entertain appeals on interlocutory decisions where the substantive matter was still pending before the superior courts. However, it could do so where the appeal was not only on a substantive determination by the Court of Appeal of a constitutional question but also on an issue that has been canvassed right from the High Court to the Court of Appeal even though the substantive matter was still pending before the High Court. Another exception where the Supreme Court could assume jurisdiction even though the decision against which an appeal had been preferred was delivered by the Court of Appeal in the exercise of its powers under Rule 5 (2) (b), arose if the appellate court went beyond the preservation of the substratum of the appeal, and issued orders that were likely to occasion an injustice to one of the parties

Kampala International University v Housing Finance Company Limited (Petition 34 (E035) of 2022) [2024] KESC 11 (KLR) (12 April 2024) (Judgment)
Neutral citation: [2024] KESC 11 (KLR)

Supreme Court of Kenya
PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

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Jurisdiction – Supreme Court – scope of the jurisdiction of the Supreme Court – jurisdiction to determine an appeal against an interlocutory decision of the Court of Appeal where a substantive matter was still pending at the superior courts – general rule regarding appeals filed to the Supreme Court, concerning interlocutory decisions – exceptions to the general rule – whether the Supreme Court had jurisdiction to entertain an appeal against an interlocutory decision of a superior court, where the substantive matter was still pending – Constitution of Kenya, 2010, article 163 (4) (a)

Brief Facts
The appeal challenged the Ruling of the Court of Appeal, wherein the Appellate Court declined to grant the appellant leave to appeal against the High Court Decision emanating from sections 35 and 39 of the Arbitration Act. In response to the petition, the respondent filed a Notice of Preliminary Objection urging that the Supreme Court lacked jurisdiction to hear and determine the appeal by dint of articles 163(4)(a) and (b) of the Constitution, sections 15, 15A and 15B of the Supreme Court Act as well as the guiding principle on its jurisdiction to hear appeals emanating from section 35 of the Arbitrations Act. According to the respondent, the appeal raises no issues of constitutional interpretation and application and the only issue for consideration by the Court of Appeal was whether the appellant had met the threshold settled by the Supreme Court, with respect to leave to appeal against the decision of the High Court under Section 35 of the Arbitration Act.

Issues:

  1. Whether the Supreme Court had jurisdiction to entertain an appeal against an interlocutory decision of a superior court, where the substantive matter was still pending

Held:

  1. As a general rule, the Supreme Court could not entertain appeals on interlocutory decisions where the substantive matter was still pending before the superior courts. However, it could do so where the appeal was not only on a substantive determination by the Court of Appeal of a constitutional question but also on an issue that has been canvassed right from the High Court to the Court of Appeal even though the substantive matter was still pending before the High Court. Another exception where the Supreme Court could assume jurisdiction even though the decision against which an appeal had been preferred was delivered by the Court of Appeal in the exercise of its powers under Rule 5 (2) (b), arose if the appellate court went beyond the preservation of the substratum of the appeal, and issued orders that were likely to occasion an injustice to one of the parties.
  2. An appeal could lie from the High Court to the Court of Appeal on a determination made under section 35 under circumstances where the High Court, in setting aside an arbitral award, had stepped outside the grounds set out in that section and thereby made a decision so grave, so manifestly wrong and which had completely closed the door of justice to either of the parties. The circumscribed and narrow jurisdiction should also be so sparingly exercised that only in the clearest of cases should the Court of Appeal assume jurisdiction.
  3. Leave would have to be sought from and granted by the Court of Appeal before an intending appellant filed the appeal. That mechanism would be the answer to the process by which frivolous, time-wasting and opportunistic appeals would be nipped in the bud and thence bring arbitration proceedings to a swift end.
  4. Not every decision of the High Court under section 35 was appealable to the Court of Appeal. An intended appeal, which was not anchored upon the four corners of section 35 of the Arbitration Act, should not be admitted. In that regard, an intended appellant must demonstrate (or must be contending that) in arriving at its decision, the High Court went out of section 35 of the Act for interfering with an arbitration award.
  5. There was no constitutional issue that had been canvassed at the High Court, the determination of which, was substantively decided by the Court of Appeal. The mere claim by a party to the effect that its rights were violated by a superior court for whatever reason, did not bring the intended appeal within the purview of article 163 (4) (a) of the Constitution. The instant appeal did not fall within any of the exceptions which would justify the Supreme Court’s assumption of jurisdiction over a Ruling by the Court of Appeal, there being no pending or intended substantive appeal therefrom.
  6. The Court of Appeal had jurisdiction when leave was sought to appeal the decision of the High Court on the setting aside of an arbitral award under section 35, to interrogate the substance of the intended appeal. By declining to grant leave to appeal, the Court of Appeal was properly guided by jurisprudence from the Supreme Court on the same issue. There was no basis upon which the Supreme Court could assume jurisdiction to overturn or otherwise deal with the Court of Appeal’s decision declining to grant leave to appeal.

Petition of appeal dismissed. Costs shall be borne by the appellant.

COMPETITION LAW

Students and the teachers of a school were assets capable of being acquired within the meaning of section 2 of the Competition Act

Headnote:The main issue was whether the series of transactions between Makini School and Bhayani School could be considered a merger that required the approval of the Competition Authority of Kenya. The appellants had argued that natural persons were not assets capable of transfer. The Tribunal found that the Target was an undertaking capable of being acquired at all material times. Students and teachers of the Target were assets capable of being acquired by the appellant. The Target, by declaring their staff redundant severed the legal link, but the economic link was not terminated. The students and teachers were not bare assets but constituted an enterprise and therefore the appellant in acquiring them took control of a going concern. Therefore, the acquisition of the Target’s business constituted a merger within the meaning of sections 2 and 41 of the Act.

Makini School Limited v Competition Authority of Kenya (Tribunal Case 011 of 2021) [2023] KECT 466 (KLR) (29 August 2023) (Judgment)
Neutral citation: [2023] KECT 466 (KLR)
Competition Tribunal
JD Ogola, Chair, V Mwende, MO Okeyo, K Marrirmoi & R Nyamweya, Members
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Competition Law – Mergers – definition of mergers – claims that the transaction between Makini School and Bhayani School was not a merger – claims that students and staff were not assets capable of acquisition – whether natural persons could be considered assets of an entity and were capable of being acquired by another entity – whether students and staff members constituted assets and could be considered a legal interest capable of acquisition, sale or transfer – whether there was a transaction between the appellant and the target, that resulted in the transfer and acquisition of assets and the control of the Target – Competition Act (CAP 504), section 41 (1) & 2 (a) & (b)
Competition Law – Mergers – control of mergers – payment of full purchase by an acquiring undertaking – where it was argued that consideration had not been paid hence no merger was implemented – whether proof of payment of consideration was a mandatory requirement for proof of implementation of a merger – Competition Act (CAP 504), section 42

Brief facts:
The appellant describes itself as a group of schools which aimed to provide quality education at an affordable cost. The appellant undertook a series of transactions that involved Bhayani School. In light of the transactions, the respondent wrote a letter to the appellant requiring the appellant to furnish the respondent with details regarding the acquisition of Bhayani School by the appellant. The respondent (the Competition Authority of Kenya) was mandated to promote and protect effective competition in the Kenyan Markets and within the instant case, control of mergers and acquisitions.
The appellant responded to the respondent’s letter stating that: the appellant had proposed that the Landlord lease the premises comprised in the School Complex upon learning that Bhayani School was closing and vacating the premises; as a gesture of good faith, the appellant elected to offer pupils of the Bhayani School a place with the appellant; and the appellant did not acquire the business or assets of Bhayani School but was merely leasing the premises previously occupied by Bhayani School.
At the end of their correspondence, the respondent found that there were transactions requiring approval of the respondent within the meaning of section 42 of the Competition Act. As a result, a penalty of Kshs 7,239,876 was imposed on the appellant. Dissatisfied with the decision of the respondent, the appellant filed an appeal before the Tribunal. /p>

Issues:

  1. Whether natural persons could be considered assets of an entity and were capable of being acquired by another entity.
  2. Whether students and staff members constituted assets and could be considered a legal interest capable of acquisition, sale or transfer.
  3. Whether there was a transaction between the appellant and the target, that resulted in the transfer and acquisition of assets and the control of the Target.
  4. Whether proof of payment of consideration was a mandatory requirement for proof of implementation of a merger.

Relevant Provisions of Law
Competition Act, cap 504
Section 2 – Interpretation
"merger" means an acquisition of shares, business or other assets, whether inside or outside Kenya, resulting in the change of control of a business, part of a business or an asset of a business in Kenya in any manner and includes a takeover;
Section 42 - Control of Mergers
(1) The Authority may, in consultation with the Cabinet Secretary and by notice in the Gazette, set the threshold for any merger excluded from the provisions of this Part.

(2) No person, either individually or jointly or in concert with any other person, may implement a proposed merger to which this part applies unless the proposed merger is—
(a) approved by the Authority; and
(b) implemented in accordance with any conditions attached to the approval.
(3) No merger as described in section 41 carried out in the absence of an authorizing order by the Authority, shall have any legal effect, and no obligation imposed on the participating parties by any agreement in respect of the merger shall be enforceable in legal proceedings.
(4) Payment of the full purchase price by the acquiring undertaking shall be deemed to be implementation of the merger in question for the purposes of this section, and payment of a maximum down payment not exceeding twenty percent of the agreed purchase price shall not constitute implementation.
(5) Any person who contravenes the provisions of this section commits an offence and shall be liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding ten million shillings or both.
(6) The Authority may impose a financial penalty in an amount not exceeding ten per cent of the preceding year’s gross annual turnover in Kenya of the undertaking or undertakings in question.

Held:

  1. Section 2 of the Competition Act defined an undertaking as any business intended to be carried on or carried on for gain or reward by a person, a partnership or a trust in the production, supply or distribution of goods or provision of any service and included a trade association. In 2019, when the appellant took over the School Complex, Bhayani School was an operational undertaking. The Administrators of Mr. Narandas’ estate continued to operate Bhayani School as a business even after his death. Bhayani School issued a school fees structure for 2019 despite the notice to vacate requiring them to hand over the premises by September 2018. As of 2019, when the appellant took over the School Complex, Bhayani School was not in the process of winding up. On the contrary, Bhayani School (the Target) was a fully operational undertaking and thus capable of being acquired.
  2. Customers were the ultimate asset for any profit-making organisation. Students were the customers in a school and remained the main continuous revenue stream for any school that was run as a business. A school without students was not in business. Students and the teachers of a school were assets capable of being acquired within the meaning of section 2 of the Act.
  3. The appellant admitted that they granted admission to a total of 242 students who were former students of the Target. Students of a school wee assets, hence the appellant acquired a portion of the Target’s assets being the 242 students.
  4. The employees and students may not have been directly transferred from the Target to the appellant, but the connection between them and the Target was never severed. Though there was a legal delinking of the students and teachers from the target, their connection to the business was never severed.
  5. The appellant did not just acquire the bare assets of the Target. The students and teachers of the Target collectively constituted an enterprise; the enterprise just changed ownership and control from the Target to the appellant. The assets were not fractured but continued to be used in combination. The student (candidates) in the Target School continued to learn under their old teachers to avoid disruption as they prepared for their final exams.
  6. The Target never wound up and never ceased operations. The teachers and students continued as an enterprise from the Target into the appellant; there was no disruption or period of inactivity or limbo. The appellant did not just acquire assets but acquired a going concern and took control of Target’s business.
  7. The Target was an undertaking capable of being acquired at all material times. Students and Teachers of the Target were assets capable of being acquired by the appellant. The Target, by declaring their staff redundant severed the legal link, but the economic link was not terminated. The students and teachers were not bare assets but constituted an enterprise and therefore the appellant in acquiring them took control of a going concern. Therefore, the acquisition of the Target’s business constituted a merger within the meaning of sections 2 and 41 of the Act.
  8. A reading of section 2 on the definition of a merger and of section 41 (2) (a) and (b) of the Competition Act, indicated that the sections did not refer to payment of the purchase price as a prerequisite for a merger to have occurred. Once the parameters outlined in the provisions were satisfied, a merger would be deemed to have taken place.
  9. An understanding of section 42 (4) was that payment of at least 20% of the purchase price, under a merger transaction, would constitute implementation of a merger even where the outcomes contemplated in section 2 and section 41 (2) were intended by the parties but were yet to materialize. There was a merger and the approval of the respondent was not sought. The appellant violated the provisions of section 42(2) of the Competition Act. Hence the penalty imposed by the respondent was justified as per the provisions of section 42 (6) of the Act.

Appeal dismissed.
Orders

  1. The respondent’s decision dated December 8, 2020, was upheld.
  2. The appellant was to bear the costs of the Appeal.