The case in point is SUPREME COURT OF KENYA PETITION NO. 4 OF 2020: HON. MR. JUSTICE MARTIN MATI MUYA –V- THE TRIBUNAL APPOINTED TO INVESTIGATE THE CONDUCT OF JUSTICE MARTIN MUYA, JUDGE OF THE HIGH COURT OF KENYA
You have heard a judge being compared to Caesar’s wife. The apex court too revisited this comparison. No quarrel, a judge should be beyond suspicion. In the words of the court, with which we agree, a judge must discharge their functions with integrity, impartiality and intellectual honesty without the slightest whiff or improper conduct or behavior.
But that is not to say that judges are infallible. They are human beings. It would appear that the framers of our Constitution 2010 had this in mind when one considers the text of Article 168 (1) (e) which provides that a judge may be removed from office on the grounds of gross misconduct misbehavior. The framers appreciated that there are different degrees of misconduct. Even to an incurious audience, gross is an expression of something very serious.
The framers of our Constitution did not define the phrase gross misconduct in the Constitution. Nor has the phrase been defined anywhere in our statute books. We think the omission is somewhat profitable. For we too agree that whether the conduct of a judge can be typified as gross misconduct or behavior cannot be done in abstract. It is a question of fact that will depend on the nature of the complaint.
Judicial opinion has, invariably, attempted to demystify what constitutes gross misconduct. They have opined that gross means atrocious, colossal, deplorable, disgusting, dreadful, enormous, gigantic, grave, heinous, outrageous, odious, and shocking. All these words plainly describe extreme negative conduct.
So then what happened in Hon. Mr. Justice Martin Mati Muya’s case?
Two complaints were lodged against the judge at the Judicial Service Commission (the Commission) in line with Article 168 (2) of the Constitution. The complaints related to the manner in which the learned judge handled two cases, that is, Bomet HCCC NO. 4 of 2016, Alfred Kipkorir Mutai & Kipsigis Stores Limited v. NIC Bank Limited (HCCC NO. 4 of 2016) and Bomet HCCC No. 2 of 2016 Alfred Kipkorir Mutai & Kipsigis Stores v. KCB Bank Limited (HCCC No. 2 of 2016).
In the appeal before the apex court, it is the learned judge’s conduct in Bomet HCCC NO. 4 of 2016, Alfred Kipkorir Mutai & Kipsigis Stores Limited v. NIC Bank Limited (HCCC NO. 4 of 2016) that took centre stage.
Shorn of the frills, the complaint against the judge was that while adjudicating Bomet HCCC NO. 4 of 2016, Alfred Kipkorir Mutai & Kipsigis Stores Limited v. NIC Bank Limited (HCCC NO. 4 of 2016) he rendered a ruling on 30th May 2017 allowing the Plaintiff’s application for injunction. However, he reserved his written reasons for the decision. In the interim, he ordered that status quo be maintained. After a series of events, the learned judge ultimately delivered the written reasons on 3rd November 2017. This computes to a delay of five months.
Upon receipt of the complaint, the Commission constituted a committee of four members. The committee, upon considering the complaint, found the learned judge culpable of inordinately delaying delivery of the reasons. To the committee, a prima facie case of gross misconduct, misbehavior, incompetence, lack of integrity and professionalism, breach of the Constitution and bias had been made out against the judge. On these grounds, the committee recommended to the Commission to petition the President to appoint a Tribunal to further investigate the judge’s conduct in line with Article 164 (4) (5) of the Constitution. The Commission adopted the report of the committee. However, to the Commission, the only two grounds borne of out the evidence warranting investigation by the Tribunal was gross misconduct and behavior. The Commission thus petitioned the President and recommended appointment of a Tribunal to investigate the conduct of the judge.
The President constituted a Tribunal to investigate the judge in line with the recommendations of the Commission. At the end of it all, the Tribunal just like the Commission, found the judge culpable of gross misconduct. The Tribunal found that there was unjustifiable and inordinate delay on the part of the judge in delivering the written reasons. Just like the Commission, the Tribunal found the judge’s reasons for the delay insufficient and incredible. Satisfied that a case of gross misconduct had been made out against the judge, the Tribunal recommended removal of the judge from office.
Aggrieved by the decision of the Tribunal, the judge approached the apex court under Article 168 (8) of the Constitution. The apex court considered all the evidence before the Tribunal within the sufficient legroom available to the court as a first appellate court. In brief, this is what the apex court made of the case against the judge.
There was nothing legally objectionable about the judge rendering his ruling and reserving his reasons for a later date. This practice is permitted by Rule 32 (1) and (2) of the High Court (Organization and Administration) (General) Rules, 2016 made under the High Court (Organization and Administration), Act 2015. The only caveat is that such reasons must be given within seven days of the ruling. It is however common ground that the ruling was not delivered within seven days.
The court observed that since the application before the learned judge was one for injunction, then Order 40 Rule 5 of the Civil Procedure Rules, 2010 required the judge to deliver the ruling either at once or within thirty days of the conclusion of the hearing of the application inter-partes. That too never happened.
The judge, all the way from the proceedings before the Commission and the Tribunal had enumerated several reasons why it took such a long time to render the reasons. The judge had explained, inter alia that besides presiding in Bomet High Court, he had been assigned additional duties at Kericho High Court where he was the only High Court Judge. That he had a heavy cause list from the two court stations. That immediately after delivering the ruling on 30th May 2017, he proceeded on his annual leave for the entire month of June, 2017. That the August Court Recess as well the Judges’ Annual Colloquium fell during the period under consideration. That the working conditions at Bomet High Court were unfavorable as he had no secretary. That the court building was incomplete and there were no toilets or running water. These explanations never found favor with the Commission nor the Tribunal.
The apex court in its analysis agreed that there was indeed long delay by the judge in delivering his reasons. The court however quickly observed that time is a relative and subjective concept. In the context of judicial processes, the principal issue may not be the extent of the delay, but its reasonableness and justification for it. Several factors may usher in delay, for instance, particular systemic pressures faced by a judge sitting at a particular station, personal factors such as bereavement or ill-health, difficulties under which the judge labors be they institutional, work environment related, among others.
Just like the Tribunal, the apex court accepted that there is no single universally accepted definition of the word “inordinate.” What amounts to inordinate delay will be determined on a case by case basis within the context of the facts therein. For delay to be typified as “inordinate” it should be self-evident and obvious. The focus should not be on the length of the delay per se, but also on the justification and reasons. The reasons must be rational and plausible. Where the delay is prolonged, the court has discretion to consider, whether justice can still be done despite the delay. Prejudice likely to be occasioned to any party is equally an important consideration.
The court, after considering several authorities, accepted that a lapse of five months is not per se inordinate. It would only amount to inordinate delay if it is inexcusable for lack of justification.
The apex court revisited the explanations offered by the judge. The court also found that the judge had brought the challenges he was facing to the attention of the Chief Justice and the Chief Registrar of the Judiciary.
Unlike the Commission and the Tribunal, the apex court, upon taking into consideration the length of the delay, bearing in mind that this was just one isolated instance of delay in the judge’s many years of service; appreciating the justification where the judge highlighted systemic institutional pressures, taking into account personal factors such as annual leave, the lamentable conditions of work, found that though there was delay, the delay could hardly be termed “inordinate.” The apex court was convinced that had the Tribunal sufficiently considered all these reasons, it would have appreciated that the delay was not extreme or unconscionable. Neither was the delay out of proportion nor exceed the limits of reason.
To the court, only long, incessant, repetitive and even habitual delays may amount to an indefensible dereliction of duty, which in turn may render the judge concerned unsuitable to hold office. This was hardly the case here. There was no discernible pattern of dereliction. The judge admitted the delay, offered plausible explanation and expressed remorse.
Having found that as much, the court, inexorably, found that the judge was not guilty of gross misconduct. The court found that the punishment of being removed from office was excessive and disproportionate.
On the question of whether the judge had caused loss to one of the parties for issuing an order of status quo, the Tribunal made no findings. To the court, it was correct for the Tribunal to refrain from entering into that arena because the alleged loss was still a question pending before the trial court by way of a counterclaim. Further, the Tribunal could not question exercise of discretion by the judge. The Tribunal lacks appellate power over a judge’s decision.
In totality, to the apex court, removal of a judge from office for whatever reason is not a light matter. Such removal can only be justified where the shortcomings complained of are so serious as to destroy confidence in the judge’s ability properly to perform the judicial function. As grounds of removal of a judge from office, gross misconduct or misbehavior is used in contradistinction to simply misconduct or misbehavior. It is a test of whether the judge, whose conduct is being investigated, could continue to be trusted to carry out his or her role in the administration of justice.
Ultimately the apex court spared the learned judge by absolving him of the charge of gross misconduct. Accordingly, the Tribunal’s recommendation to the President to remove the judge from office was set aside. The judge is at liberty to resume his judicial duties. Here is the full judgment.
At some point, the apex court wondered, albeit implicitly, whether time has come for Kenya to keep up with her peers elsewhere who have adopted a range of graduated sanctions when it comes to disciplining judges. The sanctions start from admonition to reprimanding. Under our current legal framework, there are no equivalent procedures for disciplinary action against a judge for misconduct not warranting removal. Is it time? You be the judge.
