Court strikes out magistrate’s petition against Chief Justice Koome
Chief Justice Martha Koome.
The Employment and Labour Relations Court has struck out a Nairobi magistrate’s petition seeking to halt disciplinary proceedings initiated against her by Chief Justice Martha Koome.
The court ruled that Chief Magistrate Stella Atambo, currently stationed at Kibera Law Courts, used the wrong procedure to challenge the process.
Justice Monicah Mbarũ said the legal dispute over the fairness of two Notices to Show Cause issued to Ms Atambo should have been filed as an ordinary employment claim rather than a constitutional petition, since the issues could be addressed through the standard employment litigation process.
“The petition, premised on the challenged Notices to Show Cause issued by the first respondent against the petitioner and the orders sought, does not raise any need to interpret the Constitution over any rights not provided for under statute,” Justice Mbarũ said in the ruling delivered on October 8. "This is unnecessary. It is not a proper petition," the court stated.
Ms Atambo moved to court in April 2026 after Office of the Chief Justice issued the show cause notices on April 10 and 17.
She alleged breach of rights and asked the court to stop further action arising from the notices. She also sought orders compelling the Judiciary to disclose the evidence, reports, statements, data, documentation and records relied upon, whether directly or indirectly, in issuing the notices.
The contested notices required her to respond to allegations within 14 days, but the ruling did not set out those allegations.
The Kibera Law Courts in Nairobi.
The ruling came days after the court dismissed her application to expunge a replying affidavit sworn by Muciimi Mbaka, a Senior Legal Counsel in the Office of the Chief Justice, in response to her court case.
She had argued that Ms Koome, having exercised disciplinary powers delegated by the Judicial Service Commission, could not delegate to another officer the responsibility of accounting for those decisions in court.
She also questioned Mr Mbaka’s authority to swear the affidavit, noting that he had not attached written authorisation.
But the office maintained that the case was against the office of the Chief Justice, not Martha Koome personally, and that Mr Mbaka was competent to explain the administrative process because he was familiar with the records.
Justice Mbarũ ruled that an employer could appear through an authorised officer and that the missing written authority did not invalidate the affidavit.
In the case, Ms Atambo argued that constitutional protections applied from the start of disciplinary proceedings and that she did not have to wait for a decision from the Chief Justice before challenging an alleged rights violation.
Asked by the court whether it was a proper petition, the magistrate submitted that the petition was ripe and justiciable because the Constitution does not require a person to wait for the harm before seeking redress.
She said she had been asked to answer allegations without disclosure of the evidence or its source.
"The complaint is live and continuous. The Petitioner must answer, within fourteen days, allegations framed as fact without disclosure of evidence or provenance. Article 25(c) makes the right to a fair trial non-derogable, and an act that is a nullity is a nullity from inception," she argued.
Her submissions cited various provisions of the Constitution, covering fair trial and administrative fairness. She also argued that the notices might rely on unlawfully obtained material.
The Chief Justice argued that the dispute was essentially about the fairness of an administrative notice and did not require constitutional interpretation.
"The petitioner's complaint is, in substance, a fact-specific administrative-fairness challenge to a disciplinary Notice to Show Cause, and ought not to have been brought as a constitutional petition," said the CJ's advocates.
They also argued that the Petition did not raise a genuine question requiring interpretation or application of the Constitution, and was not a proper petition.
"The matter should have been filed as an ordinary claim and not as a constitutional petition, and the Petition should be struck out on that ground and dismissed with costs," they pleases.
The court agreed, citing a previous decision holding that not all employment disputes should be converted to constitutional petitions unless one can demonstrate that the remedies under statute are insufficient.
"This is the case in the instant petition. An ordinary dispute invoking the constitutional petition route. This is unnecessary. It is not a proper petition," striking out the petition.
The court did not determine whether the notices were lawful, whether the evidence was properly obtained, or whether the allegations against Ms Atambo were true.
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