Shollei v Judicial Service Commission & 3 others [2013] KEHC 6008 (KLR)

Shollei v Judicial Service Commission & 3 others (Petition 421 of 2013) [2013] KEHC 6008 (KLR) (Constitutional and Human Rights) (22 August 2013) (Ruling)

Gladys Boss Shollei v Judicial Service Commission & 3 other [2013] eKLR

Neutral citation: [2013] KEHC 6008 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 421 of 2013

DAS Majanja, J

August 22, 2013

Between

Gladys Boss Shollei

Petitioner

and

Judicial Service Commission

1st Respondent

Hon. Ms. Emily Ominde

2nd Respondent

Ahmednasir Abdullahi

3rd Respondent

Warsame, JA

4th Respondent

Ruling

1. This matter has been brought by the Chief Registrar of the Judiciary contesting the decision of the Judicial Service Commission to send her on compulsory leave on 19th August 2013. She states that this is a violation of her rights under the Constitution and also a contravention of the provisions of the Judicial Service Act, 2011. The Notice of Motion before me seeks, inter alia, the following orders:[2] That pending interparties hearing an order of certiorari do issue to temporarily quash the Respondents’ order of compulsory leave.[3]That pending interparties hearing, a conservatory order reinstating the petitioner to office as existing ante 19th August 2013. [4] That pending interparties hearing, an order of prohibition do issue to prohibit the Respondents from commencing the disciplinary proceedings against the petitioner.

2. As this is an ex-parte application, the Court acts with caution as all the facts may not be before it and in particular where orders of some finality are sought. However, a conservatory order is intended to ensure that the rights and fundamental freedoms of the applicant are not rendered nugatory before the inter partes hearing.

3. In the circumstances, I decline to grant the prayer [2] and [3] of the Motion as these are final orders and it would be proper to hear all the parties before making those orders. However, from the material before the court, I am satisfied that case has been made out to prohibit the Judicial Service Commission from taking disciplinary proceedings against the petitioner so that the matter may be ventilated in court.

4. In the circumstances, I grant the following orders;1)The 1st respondent is restrained by way of a conservatory order from commencing or continuing any disciplinary proceedings against the petitioner pending interparties hearing of the application on 27th August 2013. 2)The Notice of Motion and Petition shall be served forthwith.

DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF AUGUST 2013. D.S. MAJANJAJUDGEMr Kipkorir instructed by KTK Advocates for the petitioner ex-parte.