Introduction
1. By the petition dated 14th March, 2025, the Petitioner has approached this Court seeking the following reliefs against the Respondent:
(1) A declaration that the petitioner, as a public officer, was entitled to the protection of the law as outlined in section 77(9) of the old Constitution, and to the right to a fair hearing and treatment under the Constitution, the Service Commission Act, chapter 185 of the laws of Kenya, and related laws under Article 2(5) and (6) of the 2010 Constitution.
(2) That this court be pleased to declare that upon service of over 18 years, the loss of retirement benefit amounts to inhuman and degrading treatment within the meaning of section 74 (1) of the old Constitution.
(3) An order for payment of the lost salary by the Respondent from 2003 to 2022.
(4) Compensation by way of general damages for the violation of the petitioners' constitutional rights and freedoms under section 70 (a), 74(1), 77(2) (a), 77(9) as read with 107(1) and 107(4) of the old constitution, Article 4 and 7 of the ILO convention NO. 158 of 1982, Article 5,7,11(1) and 23 (1) of the UDHR and Article 2(1)(5)(6), 20, 21(1), 22, 23, 25, 27, 41, 47, 50 (1), 162 and 236(b) of the 2010 Constitution of Kenya
(5) The petitioner be paid costs of this petition.
2. The Respondent opposes the petition, sworn on 13th June 2025, by Isaac J.M Wamaasa, its Acting Registrar. The Respondent contends that the instant petition lacks merit for various reasons and that the Petitioner is not entitled to the relief sought.
Petitioners case
3. It is the Petitioner’s case that he is a former employee within the Judiciary who was employed in 1985 and rose through the ranks to the position of Higher Clerical Officer in Job Group F.
4. He argues that his employer at all material times was the Registrar of the High Court and that his employment was governed by the Service Commissions Act, Cap 185 Laws of Kenya (then in force).
5. The Petitioner states that he was dismissed from employment on 11th March 2003.
6. He argues that the Judicial Service Commission did not have the authority to dismiss him or others in his job group, as disciplinary control was then vested in the Public Service Commission under section 107(1) of the former Constitution.
7. The Petitioner states that there was no employer–employee relationship between himself and the Respondent, and therefore the Respondent could not lawfully take disciplinary action against him.
8. He further states that the decision to dismiss him was made during a meeting allegedly held on 18th February 2004, yet he was never heard at the said meeting.
9. The Petitioner contends that his dismissal was unlawfully backdated by two years, thereby denying him an opportunity to challenge the decision, rendering the process unfair, unprocedural, and unconstitutional.
10. The Petitioner states that he was charged in Criminal Case No. 1617 of 2001, and when fresh charges were preferred against him, under Criminal Case No. 2718 of 2003. The Respondent dismissed him whilst the criminal case against him was pending. Eventually, the criminal proceedings were determined on 5th April 2006.
11. He argues that the Respondent’s action of dismissing him from employment during the pendency of the criminal case was unconstitutional as it violated his constitutional right under section 77(2) of the former Constitution, which guaranteed him the presumption of innocence until proven guilty.
12. He further states that under Regulation 36[1][a] of the Service Commission Act [then in force], the authorised officer was required to frame charges if it was established that the alleged misconduct justified dismissing the accused person from public service. As the Respondent was not the authorised officer for the purposes of the provision, the requirements of the provision were not followed.
13. The Petitioner further contends that witnesses, if any, were not examined in his presence, he was not supplied with documentary evidence, and he was denied an opportunity to challenge the allegations against him.
14. He asserts that the Respondent’s actions violated his rights to fair hearing, fair administrative action, and protection of the law as guaranteed under sections 70(a), 77(2), and 77(9) of the former Constitution, as read with Articles 27, 41, 47, 50, and 236 of the Constitution of Kenya, 2010.
15. The Petitioner avers that upon his acquittal, the Respondent failed to reinstate him, resulting in loss of livelihood, retirement benefits, and salary for the remaining 19 years to his statutory retirement age.
16. He therefore contends that his dismissal was illegal, unlawful, wrongful, unfair, and unconstitutional, and seeks declarations, payment of retirement benefits, salary arrears, and damages.
Respondent’s case
17. The Respondent states in its replying affidavit sworn by Isaac J. M. Wamaasa, the Acting Registrar of the Judicial Service Commission (JSC), that the Petitioner was employed by the Judiciary Department in 1985 and rose to the position of Higher Clerical Officer in Job Group F by the time of his dismissal on 11th March 2003, but denies that the dismissal was unlawful or unconstitutional.
18. The Respondent states that under the repealed Constitution and the Service Commissions Act (Cap 185), the JSC was lawfully established and governed the operations, powers, and discipline of judicial staff.
19. It is averred that Regulation 9 of the Service Commissions Act applied to judicial staff, including the Petitioner, and governed disciplinary procedures within the Judiciary, which at the time operated as a department within the civil service.
20. The Respondent contends that during the Petitioner’s employment and dismissal, the judiciary operated as a department within the civil service structure and the JSC, authority over staff derived from the repealed Constitution, as read with the Service Commissions Act.
21. The Respondent denies that the Registrar of the High Court was the Petitioner’s sole employer and asserts that the Petitioner was employed by the Judiciary Department and subject to disciplinary oversight by the JSC.
22. It is stated that the Petitioner’s employment was governed by the Service Commissions Act, as evidenced by employment documents dated in 1985.
23. The Judicial Service Commission was established under Section 68 of the repealed Constitution of Kenya and is maintained under Article 171 of the Constitution of Kenya, 2010, with authority over the discipline of judicial staff, including the power to dismiss staff members such as the Petitioner.
24. Section 69 of the repealed Constitution bestowed upon the JSC the authority to appoint, confirm in appointment, exercise disciplinary control over judicial officers and staff, and terminate them. Furthermore, Section 107[f] permitted the Public Service Commission to delegate disciplinary powers to the JSC.
25. The Respondent states that an internal investigation arising from an inspection report dated December 2000 established that the Petitioner had engaged in misconduct, specifically the misappropriation of funds.
26. It is averred that the Petitioner was interdicted by a letter dated 27th August 2001, informed of the allegations of misappropriation, and given 21 days to respond, but failed to do so.
27. The Respondent contends that the Petitioner’s failure to respond to the interdiction letter, coupled with partial repayment of the misappropriated funds, constituted an admission of misconduct.
28. The Respondent asserts that the Petitioner was afforded a fair opportunity to be heard in accordance with the Judicial Service Commission Regulations and the principles of natural justice, but failed to seize that opportunity.
29. It is stated that the Petitioner’s dismissal resulted from an internal disciplinary process independent of any criminal proceedings and was justified by evidence of misconduct.
30. The Respondent denies that the dismissal violated the presumption of innocence under section 77(2) of the former Constitution, asserting that the presumption applies to criminal proceedings and does not bar internal disciplinary action.
31. The Respondent avers that the disciplinary process complied with the principles of natural justice and due process. The principles espoused by ILO Convention No. 158 and international instruments could override the then-in-force domestic legal framework governing public service employment.
32. The Respondent contends that the Petitioner hasn’t demonstrated how it violated his constitutional rights. Considering the reliefs the Petitioner has sought, the doctrine of constitutional avoidance duly militates against his petition,
33. It is argued that under the regulations in force at the time, an officer dismissed from service forfeited all rights to pension and retirement benefits, making the Petitioner’s claims untenable.
34. The Respondent states that, prior to the enactment of the Employment Act 2007, and in line with Section 3[2] of the Public Authorities Limitation Act, no proceedings founded on contract could be brought against the Government, or a Local Authority, after the end of three years from the date on which the cause of action accrued.
35. The Petitioner’s claim for retirement benefits and salary from 2003 to 2022 is barred by the Public Authorities Limitations Act. The instant petition is a claim shrouded as a petition to avoid the limitation of time.
36. The Respondent asserts that the delay in filing the Petition is inordinate, unexplained, and prejudicial, and that the doctrine of laches applies against the petition.
37. It is contended that the Petition fails to meet the constitutional threshold established in Anarita Karimi Njeru v Republic [1976-1980] KLR 1272. The Petitioner has not pleaded with precision the constitutional provisions breached or the acts constituting the breaches. As such, the petition is defective.
Petitioner’s submissions
38. The Petitioner submits that his current Petition arises from his dismissal from employment by the Judicial Service Commission (JSC) on 11th March 2003, which was backdated to 1st August 2001. He contends that he was employed by the Registrar of the High Court; therefore, the JSC lacked the authority to dismiss him. Consequently, the dismissal was unlawful.
39. The Petitioner relies on the retired Constitution, specifically Sections 70(a), 74(1), 77(2)(a), 77(9), 84(1), 107(1), and 107(4), Articles 2(1), (3), (6), 20, 21(1), 22, 23, 25, 27, 41, 47, 50(1), 162, and 236(b) of the 2010 Constitution, the ILO Convention No. 158 of 1982 (Articles 4 and 7), the UDHR (Articles 5, 7, 11(1), and 23(1)), the Employment Act No. 11 of 2007, the Labour Relations Act No. 18 of 2014, and the Service Commissions Act, Chapter 185 Laws of Kenya, to emphasise that the dismissal was unlawful.
40. The Petitioner states that he was employed by the Registrar, not the JSC. There was no employer-employee relationship with the Respondent under the Employment Act or Labour Relations Act. His employment was governed by the Public Service and Judicial Service regulations (Regulation 36 of the Service Commissions Act).
41. Further, JSC dismissed him while criminal proceedings were ongoing (Criminal Case No. 1617 of 2001 and 2718 of 2003). This violated Section 77(2)(a) and 77(9) of the retired Constitution, Article 41 of the 2010 Constitution, Articles 4 and 7 of ILO 158 of 1982, and Article 23(1) of the UDHR. The dismissal denied him a fair hearing and violated the rules of natural justice.
42. The dismissal contravened Regulation 36 of the Service Commissions Act, which prescribes disciplinary procedures for public officers. He was dismissed without any valid reason and in contravention of his right to fair labour practice guaranteed by the Constitution. Reliance is placed on cases including Oloo vs Kenya Posts and Telecommunications [1982–88] 1 KAR 655, Eric Essau Amwayi vs Attorney General, Nairobi HCC No.2691 of 1994 (UR), Equity Aviation Services (PTY) Ltd vs Commissioner for Conciliation, Mediation and Arbitration & 2 others [2008] ZACC 16, and Maseno University vs Universities Academic Staff Union [2015] eKLR.
43. He further argues that the action by the Respondent of dismissing him from employment whilst the criminal case was pending amounted to depriving him of his right to equal protection under the law as was guaranteed under Article 70[a] of the old Constitution, maintained under Article 27 of the Constitution of Kenya, 2010. and Regulation 25 of the Service Commission Act.
44. The Respondent’s letter of dismissal deprived him of retirement benefits that had accrued, constituting inhuman and degrading treatment contrary to Section 74(1) of the retired Constitution, Article 25(a) of the 2010 Constitution. To support this point, he places reliance on Wilberforce Osodo vs Attorney General & 2 others [2014] eKLR, Ofisi & 7 others vs Attorney General [2022] KEHC 11869, and Gbmere vs Shell Petroleum Development Co. of Nigeria Ltd [2005] 10 SC 62.
45. The Petitioner argues that the Respondent acted ultra vires, without legal authority, contrary to the doctrine of legality under Article 2(2) and 259(3)(a) of the 2010 Constitution. Reliance is placed on Billy Lisedi Maseltha vs The President of the Republic of South Africa & another [2007] ZACC 20, AAA Investments (PTY) Ltd vs Micro Finance Regulatory Council, and Pharmaceutical Manufacturers Association of SA: In re Ex parte President of RSA 2000 (CCT 31/99) ZACC 1.
46. The Petitioner submits that the dismissal was procedurally improper, violating principles of natural justice, the rules of fair hearing, and Regulation 36(1)(a) of the Public Service Regulations. Reliance is placed on Hypolito Cassiano De Souza vs Chairman and members of Tanga Town Council [1961] E.A 377, Council of Civil Service Union vs Minister for the Civil Service [1984] 3 ALLER 935, and Gunton vs London Borough of Richmond upon Thames [1980] 3 ALLER 577.
47. The Petitioner seeks payment of lost salary from 2003 to 2022 (KShs. 2,047,440) and general damages for violation of his constitutional and fundamental rights.
Respondent’s Submissions
48. The Respondent submits that the Petition is essentially an employment dispute arising from the Petitioner’s dismissal from the Judiciary on 11th March 2003 and has been improperly framed as a constitutional petition to circumvent statutory limitation periods and established employment dispute resolution mechanisms.
49. The Petition is severely time-barred, having been filed more than twenty years after the cause of action arose. The Respondent contends that the delay is excessive, unexplained, and prejudicial, justifying dismissal on the grounds of limitation and laches.
50. The Respondent maintains that constitutional petitions, although not subject to strict limitation periods, can still be dismissed if there is an unreasonable and unexplained delay. They cite Charles Oyoo Kanyangi & 43 Others v Judicial Service Commission [2020] KEELRC 884 (KLR), in which a fourteen-year delay was found unjustifiable.
51. The Respondent submits that at all material times, the Petitioner was a judicial staff member employed under the Service Commissions Act (repealed) and subject to the disciplinary authority of the Judicial Service Commission as established under Section 68 of the repealed Constitution.
52. It is contended that the Judicial Service Commission had lawful authority to discipline and dismiss the Petitioner pursuant to Section 69 of the repealed Constitution and the applicable regulations, and that the assertion that the Registrar of the High Court was the sole employer is incorrect.
53. The Respondent submits that the Petitioner’s dismissal followed an internal disciplinary process initiated after an inspection report dated December 2000 established misconduct, namely misappropriation of funds. The disciplinary process was independent of any criminal proceedings.
54. According to the Respondent, the Petitioner was interdicted, informed of the allegations against him, granted adequate time to respond, and failed to do so. The Respondent argues that the Petitioner’s failure to contest the charges, coupled with partial repayment of the misappropriated funds, constituted an admission of misconduct justifying dismissal.
55. On procedural fairness, the Respondent argues that the disciplinary process complied with the principles of natural justice and due process applicable at that time. The presumption of innocence under Section 77(2) of the former Constitution, it is contended, applies strictly to criminal proceedings and does not prevent an employer from taking disciplinary action based on internal investigations.
56. The Respondent further submits that the Petition offends the doctrine of constitutional avoidance, as the dispute could have been addressed through ordinary employment and disciplinary mechanisms rather than constitutional litigation.
57. It is also argued that the Petition fails to meet the constitutional threshold set out in Anarita Karimi Njeru v Republic [1976–1980] KLR 1272, as the Petitioner has not pleaded with precision the specific constitutional provisions violated and the manner of such violation.
58. The Respondent submits that upon lawful dismissal, the Petitioner forfeited any entitlement to pension and retirement benefits under the Judicial Service Commission Regulations then in force.
59. The Respondent maintains that the Petition is incompetent, incurably defective, an abuse of the court process, and devoid of merit.
Analysis and determination
Issues
1. Whether the Petition is incompetent.
2. Whether the dismissal of the Petitioner from employment was substantively and procedurally fair.
3. Whether the Petitioner is entitled to the reliefs sought.
Whether the Petition is Incompetent
60. It is undisputed that the Petitioner was employed within the Judiciary and that his dismissal became effective on the 11th of March, 2003. It is also generally acknowledged that this Petition was filed on the 14th of March, 2025, exceeding twenty years from the date on which the cause of action arose.
61. The principle that limitation periods do not strictly apply to constitutional litigation is grounded in the recognition that constitutional rights are fundamental, enduring and deserving of protection without undue procedural barriers. Courts are therefore generally reluctant to shut out a litigant solely on the basis of time, particularly where the matter raises serious questions concerning the violation or enforcement of constitutional guarantees. This approach ensures justice is not sacrificed at the altar of technicalities, especially in cases implicating public interest, the rule of law, or fundamental freedoms.
62. However, this latitude is not without limits. The court retains an inherent duty to safeguard the integrity of the judicial process from abuse, including guarding against stale claims. Where a petitioner approaches the court after an inordinate and unexplained delay, such conduct may undermine the credibility of the claim, prejudice the Respondent, and hinder the court’s ability to effectively adjudicate the matter due to the loss of evidence, faded memories, or changed circumstances. Justice, in this sense, is a two-way street; it must be fair not only to the Petitioner but also to the Respondent.
63. Accordingly, while constitutional petitions are not bound by rigid statutory limitation periods, equity aids the vigilant and not the indolent. A Petitioner who sleeps on their rights without reasonable justification cannot expect the court's indulgence. Where delay is prolonged, and no satisfactory explanation is offered, as is in the instant petition, the court is entitled -indeed obliged to decline relief and dismiss the petition. This ensures that constitutional litigation remains a tool for genuine grievance redress rather than a vehicle for opportunistic or belated claims.
64. In the case of Charles Oyoo Kanyangi & 43 Others v Judicial Service Commission [2020], the Court held, and I agree;
“ It is trite law that there is no limitation of time in filing a constitutional petition, the delay must not be inordinate, and there must be a plausible explanation for the delay. A question, therefore, arises as to what amounts to inordinate delay. The Court in Utalii Transport Company Limited & 3 Others v NIC Bank & Another [2014] eKLR made the following observation regarding what amounts to inordinate delay-
“Whereas there is no measure of what amounts to inordinate delay. And whereas what amounts to an inordinate delay will differ from case to case, depending on the circumstances of each case, the subject matter of the case, the nature of the case, the explanation given for the delay, and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. On applying the courts’ mind on the delay, caution is advised for courts not to take the word ‘inordinate’ in its dictionary meaning, but in the sense of excessive as compared to normality.’
The Petitioners were sent on retirement on 12th March 2004 on account of public interest. No explanation was given for the delay to guide this Court in establishing whether such a delay was justifiable in the circumstances.”
65. The Court observes that the Petitioner was cognizant of his dismissal in 2003, was aware of the criminal proceedings that concluded in 2006, and has failed to demonstrate any legal or factual barrier that hindered him from petitioning the Court within a reasonable period thereafter. The delay exceeding twenty years is excessive, unjustified, and prejudicial to the Respondent.
66. Having found as I have hereinabove, I find that the most appropriate order that commends itself to this Court, in the circumstances, is that of dismissal of the petition. It is hereby dismissed. Resultantly, it would not be a prudent use of the scarce and precious judicial time to venture into considering the other issues identified for determination, or the other aspects of this first issue, like whether the doctrine of constitutional avoidance militates against the petition, and whether the petition meets the threshold of a properly crafted and presented petition.
67. Orders accordingly.
Read Signed and Delivered on this 23rd Day of March 2023.