The Petition and the Blanket Injunction
On 3 March the Commission received a petition against a Court of Appeal judge from a company that had lost a KES 480 million contract suit. The petition alleges that the judge's daughter was employed by a subsidiary of the winning bidder three years before the hearing, and that the judge met the winning company's director at a hotel during the hearing. On 10 April, before the Commission's committee could sit, the judge filed judicial review proceedings and obtained an interim order restraining the Commission from 'hearing, determining or transmitting' the petition pending the substantive motion, listed for 22 July. The Commission had intended to transmit its finding to the President on 15 April. One Commission member is an advocate who acted for the petitioner in an unrelated 2019 matter and has not recused herself. The Chief Justice chairs the Commission.
1. Can the High Court restrain the Commission's Article 168 process? Advise the Commission on how to respond to the interim order.
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The Commission's Article 168 role is a constitutional function, not a bare exercise of administrative discretion, but that does not place it beyond all judicial oversight. The High Court's supervisory jurisdiction extends to any person or body exercising a quasi-judicial function or public power. A court can therefore examine whether the Commission complied with Article 168 - whether the petition disclosed a recognised ground, whether the judge was heard, whether a conflicted member participated. What a court cannot do is substitute its view of the merits or direct a particular outcome.
A court should nonetheless be slow to grant an order whose practical effect is to suspend a constitutional duty indefinitely. An interim order barring 'hearing, determining or transmitting' until a July hearing stalls the process for months.
The Commission should: appear and seek variation or discharge, offering undertakings on timing; record that the order does not prevent internal screening and service of the petition on the judge; avoid any step inconsistent with the order until it is varied; and note that a blanket injunction against a constitutional body is ordinarily justified only by clear jurisdictional error. Seeking clarification from the court is preferable to either defiance or paralysis.
2. What is the effect of the advocate-member's failure to recuse herself, and how should the Commission cure it?
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Bias is tested objectively: would a reasonable, informed person apprehend that the member might not bring an impartial mind to the decision? An advocate who acted for the petitioner, even in an unrelated matter, has a professional and financial relationship with the complainant. Sitting in deliberations on that complainant's petition raises a real possibility of apparent bias. The test is not actual bias.
Recusal was required. The declaration should have been made at the outset, minuted, and the member excluded from deliberations and from access to the papers.
Failure to recuse does not automatically vitiate the entire process. Courts ask whether the conflicted member's participation was material to the outcome. Here, if the decision to transmit must be defensible, the Commission should reconstitute itself without her and re-take the decision, recording that the outcome is unanimous or would have been reached without her vote. A supplementary decision by an unconflicted quorum cures the defect; relying on arguments that her vote made no difference is second-best and should be supported by the minutes. The member should also be reminded of her continuing duty to declare interests.
3. If the Commission transmits the petition, what exactly must the President do and within what framework?
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Under Article 168, once the Commission is satisfied that a petition discloses a ground, it sends the petition to the President. The President must then suspend the judge from office and, within fourteen days of receiving the Commission's request, appoint a tribunal of persons qualified to be judges, chaired by a person who is or has been a judge. The judge remains suspended on the prescribed terms until the process concludes.
The tribunal inquires, gives the judge a hearing, and reports to the President with a recommendation. The President then acts on that recommendation. Neither the President nor the Commission may short-circuit the process: the President cannot remove a judge on the Commission's request alone, and the Commission cannot remove at all. Suspension is a constitutional consequence, not a finding of guilt, and should be described as such in any communication.
The Commission should serve the President with the petition, the judge's response, the screened findings and the record, and should draft terms of reference confined to the grounds transmitted. If the interim order is still in force on 15 April, the Commission should seek its variation rather than act in breach, but should also resist any suggestion that the constitutional clock can be suspended indefinitely.