The Supreme Court on Tuesday dismissed a case challenging former President Uhuru Kenyatta's decision to suspend former Environment and Land Court judge Mary Muthoni Gitumbi on mental illness grounds.
Uhuru suspended the judge on August 24, 2021, following the recommendations from the Judicial Service Commission (JSC).
While delivering its ruling, the Supreme Court also dismissed the petitioner's decision to challenge a report by a Tribunal chaired by Lady Justice Hellen Omondi which gave the JSC's recommendations a clean bill of health. The apex court observed that the recommendations made to the former head of state had a valid basis.
The Court declared that the tribunal did not overstep its mandate by looking at whether the judge was unable to perform her functions due to mental incapacity.
The five-judge bench ruled that the Tribunal established beyond reasonable doubt that the judge's illness affected her performance at the Judiciary.
"The Court finds that on the basis of the medical evidence on record and the Petitioner’s own admission, the Tribunal established beyond reasonable doubt that the Petitioner had a mental illness, schizophrenia, with a severity that it terms as chronic and deteriorates with every relapse," the judges said.
According to the judges, there was need to strike a balance between protecting Gitumbi's rights and consider her ability to perform her work.
"If an employee’s mental illness is adversely affecting their ability to perform their duties, in some instances, the employer, following due process, may terminate the employee’s contract of employment or recommend the employee’s removal from office," the judges ruled.
"A court must consider the diagnosis by a qualified professional, and medical expert evidence and assess whether, on a balance of probabilities, the employee’s mental illness affects their work duties."
In line with this, the court initiated a two-stage test that would establish whether her illness affected her duties.
The first involved assessing whether a person is mentally sound.
Second, is to establish whether an injury affects the person to the extent that they are unable to perform their duties as required.
As a result, the Judges established that the Tribunal correctly arrived at the conclusion that the judge was unable to perform her duties.
