TRANSFER POLICY & GUIDELINES FOR JUDICIAL OFFICERS

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2 TRANSFER POLICY & GUIDELINES FOR JUDICIAL OFFICERS Editing, Design & Layout by the Directorate of Public Affairs and Communication Copyright: The Judiciary, Republic of Kenya, All Rights Reserved

3 Table of Contents FOREWORD...iii DEFINITIONS... iii PART I PREAMBLE Definition Background Purpose Principles Governing the Posting & Transfer Policy Values...6 PART II GENERAL PROVISIONS Applicability Responsibility for Transfers Duration of Service in a Station... 7 PART III ORDINARY TRANSFERS Eligibility for Ordinary Transfers Timing of Transfers Procedure of Ordinary Transfers... 8 PART IV SPECIAL TRANSFERS Transfer for Judicial Officers on Medical Grounds Transfer on Academic Grounds Transfer on Election/Appointment to Special Functions Swapping of Posts Transfer for Security Reasons Transfer of Judicial Officers who are Close to Retirement Transfer of Spouses Procedure for Special Transfers Exceptions...11 PART V ODINARY TRANSFER Payment of Transfer and Baggage allowance...12 PART VI - RECONSIDERATIONS Requests for Reconsideration...13 i Transfer Policy & Guidelines for Judicial Officers

4 PART VII - MISCELLANEOUS Transition Discretion Review...14 FIRST SCHEDULE...15 S.13 Special Organizations and Institutions...15 SECOND SCHEDULE...16 Hardship Areas...16 THIRD SCHEDULE...17 S.7 Extreme Hardship Areas...17 FOURTH SCHEDULE...18 Region Court...18 Transfer Policy & Guidelines for Judicial Officers ii

5 Definitions Judicial Officer means Judge of the Industrial Court, Environment and Land Court and High Court, Magistrate, Kadhi or Deputy Registrar appointed or designated as such by the Judicial Service Commission Transfer means, for the purpose of this Policy, the deployment of a Judicial Officer from a court station in one Region to another Region. Region means one of the thirteen geographical areas specified in the Fourth Schedule. iii Transfer Policy & Guidelines for Judicial Officers

6 I Preamble Background The Judiciary is one of the three co-equal arms of government and derives its mandate from Article 159 of the Constitution. The Judiciary performs its mandate of delivering justice in court stations spread across virtually all major towns in the country, and a head office in Nairobi. These courts are manned by Kadhis, Magistrates and Judges who perform both judicial and administrative duties, as well as Deputy Registrars who support them with administrative duties and a few judicial responsibilities. There are other Magistrates who are posted in offices where they do not perform ordinary judicial duties. These include the Judiciary Training Institute, the Office of Judiciary Ombudsperson, tribunals that fall within the ambit of the Judiciary and administrative offices in the head office. In deciding where to post a Judicial Officer, the Judiciary is guided primarily by the need to serve justice with expediency. As such, Judicial Officers are posted, on appointment, to stations which need their services most given the amount and nature of work in the station. After this initial posting, there is a constant need to Transfer Judicial Officers between stations to address any gaps that may arise due to employee mobility and attrition, and to ensure all Judicial Officers are presented with the same opportunities, including room for personal and professional growth. While important and necessary, Transfer of Judicial Officers inevitably causes disruption in service delivery and in the private lives of the Judicial Officers and their families. If not properly managed, Transfers can be a source of stress and low morale for Judicial Officers, resentment between colleagues, and a buildup of case backlog. This policy is in line with Pillars 1 and 2 of the Judiciary Transformation Framework on the Expeditious delivery of justice and Transformative leadership, Organizational Culture and Professional and Motivated Staff respectively. Transfer Policy & Guidelines for Judicial Officers 4

7 Purpose The objective of the Policy is to provide for smooth, predictable and equitable rotation of Judicial Officers to minimize undue disruption to the administration of justice and to the lives of Judicial Officers. Principles Governing the Posting & Transfer Policy The Policy is based on the following principles: a. Judicial Officers accept, upon appointment, to serve the people of Kenya wherever they may be called upon to serve within the Republic. b. All Judicial Officers should get an equal opportunity to experience the benefits and challenges of serving in different areas. c. Judicial Officers who serve for too long in one station will become too familiar with the community in the area including lawyers, litigants, police, prosecutors and other members of the public. Such familiarity may compromise the Judicial Officer s impartiality with certain litigants, and his/her security. d. Judicial Officers get different exposure and experience from different stations due to the different kinds and complexities of cases they handle. All Judicial Officers deserve an equal opportunity to gain equal exposure and experience. e. There are circumstances which may require a Judicial Officer to be transferred to a particular station, even though this may not be in line with the rotation required in the Transfer Policy. The converse is also true. f. The Transfer of Judicial Officers should not result in undue disruption and delay in the delivery of justice. g. Transfer of Judicial Officers should not result in undue suffering to a Judicial Officer or the Judicial Officer s family. h. Judicial Officers due for Transfer should be given adequate notice so that they can dispense with their present workload and organize family affairs including schooling arrangements for any children they may have. i. All court users deserve to be served by the best Judicial Officers. Transfers will not, therefore, be employed as a disciplinary tool. j. Transfers will be used as a tool to ensure that the resulting deployment of Judicial Officers in court stations reflect gender balance and diversity of the people of Kenya. k. There shall be reasonable accommodation for all Judicial Officers with disabilities. Judicial Officers with disabilities will be the principal recipients of reasonable accommodation and be granted appropriate support as will be necessary to ensure the Transfer is achieved with minimum disruptions. 5 Transfer Policy & Guidelines for Judicial Officers

8 l. Where both husband and wife are serving as Judicial Officers, effort shall be made to post them in the same station or region. Values The policy aims to infuse the following values in the Transfer of Judicial Officers: i. Openness and transparency ii. Predictability iii. Fairness of process iv. Equity v. Objectivity vi. Orderliness vii. Integrity viii. Humanity/compassion Transfer Policy & Guidelines for Judicial Officers 6

9 II General Provisions Applicability a. This policy applies equally to all Judicial Officers b. All Transfers of Judicial Officers subject to the discretion of the Chief Justice must be done in accordance with this Policy save for exceptions outlined in this Policy Responsibility for Transfers Transfer decisions shall be made by the Chief Justice as the head of the Judiciary provided that s/he may delegate the implementation of this policy to the Registrar responsible for Magistrates Courts and the Principal Judge of the High court. Duration of Service in a Station a. The normal approximate tenure of posting for each Judicial Officer shall be three years save for extreme hardship stations as set out in the Third Schedule where the tenure shall be two years. The Chief Justice may, where necessary retain a Judicial Officer in one station for no more than five years. b. Where a Magistrate or Kadhi is promoted to a higher rank while serving in a station and there is no vacancy in the current station for the position s/he has been promoted to, the Officer may be transferred to another station even if s/he has not served the minimum three years in that station. c. For computing the tenure of posting of a Judicial Officer posted at a particular place as a result of Transfer otherwise than in the annual chain, i.e., a mid-term transfer, the period of six months or above shall be rounded off and treated as a full Year. d. For purposes of computing the period served in a station, any time spent on sabbatical, study leave or time served on special assignments outside the Judiciary including service in Commissions of Inquiries or Special Tribunals shall not count. 7 Transfer Policy & Guidelines for Judicial Officers

10 III Ordinary Transfers Eligibility for Ordinary Transfers A Judicial Officer, who has servedraftd for three years in a station, shall be eligible for a Transfer. Timing of Transfers a. As far as possible, the Ordinary Transfer of Judicial Officers shall be effected by the 30th of September every Year, and the Judicial Officers transferred in the annual chain shall be required to report to their new stations in January of the following year. b. In cases of Special Transfers other than those in the annual chain as defined under Section 7 of this Policy, the reporting date shall be indicated in the Transfer letter to be issued by the Chief Justice. Procedure of Ordinary Transfers The Chief Justice shall write to the Judicial Officer informing him/her of the Transfer and the station s/he will be required to move to. Transfer Policy & Guidelines for Judicial Officers 8

11 IV Special Transfers Transfer for Judicial Officers on Medical Grounds a. If a Judicial Officer, his/her spouse or child is suffering from a disease which requires specialized treatment, s/he may, on production of adequate medical proof of illness and the specialized treatment required, request for Transfer to a place where such specialized treatment is available. b. Each case will be considered on its own merit. Transfer on Academic Grounds a. A Judicial Officer who is enrolled in a program of study approved in accordance with the applicable Judiciary Training, Education and Staff Development Policy, which requires his/her regular attendance of classes may request to be transferred to a station where s/he can attend classes. b. For the avoidance of doubt, application request for Transfer made under this section shall not result in an automatic Transfer to the requested station. Transfer on Election/Appointment to Special Functions a. When an officer is elected or appointed to a position in a government or nongovernment organization/institution listed in the First Schedule, and the performance of the duties assumed on such election/appointment require the Judicial Officer to be present in Nairobi so frequently that traveling to and from Nairobi to perform those functions will result in undue disruption to the Judicial Officer s ordinary duties, the Judicial Officer may request a Transfer to a station which is near Nairobi. b. A Judicial Officer can only make such a request if s/he will serve in the position for more than 6 months. c. A Judicial Officer serving in a Regional or International Court or Tribunal may not be transferred to a station presided over by a single Judicial Officer. Swapping of Posts a. Any two or more Judicial Officers who agree to swap positions may, by written 9 Transfer Policy & Guidelines for Judicial Officers

12 notice, request the Chief Justice for such swap. Swapping may be allowed only between Judicial Officers of the same rank, where none has been gazetted or appointed to perform special duties. b. Where the swap is approved, the concerned Judicial Officers will stay in their new stations for a minimum of three years Transfer for Security Reasons A Judicial Officer who has received credible security threats may request for a Transfer. The request for Transfer for security reasons must be made to the Chief Justice in writing and must specify the details of the security threats to the Judicial Officer. Transfer of Judicial Officers who are Close to Retirement Notwithstanding anything to the contrary in this policy, an Officer who has three years or less to retire may seek a Transfer to a place where or near which s/he proposes to settle after retirement, and the Chief Justice may, if the request is bona-fide and is possible, grant such request. Transfer of Spouses Where a Judicial Officer has a spouse working for the Judiciary, that fact may be taken into account when determining Transfer. Procedure for Special Transfers a. A Judicial Officer seeking Transfer on academic grounds must submit his/her request at least six months before commencement of the approved Program of Study. b. The Chief Justice shall, within 30 days of receiving the request for Transfer on medical, security or academic grounds, communicate his/her decision on the Transfer requests. c. Where a Judicial Officer has requested a Transfer on medical, security or academic reasons, the Chief Justice may allow the Officer time off work pending the determination of the Transfer request. Transfer Policy & Guidelines for Judicial Officers 10

13 Exceptions Notwithstanding anything contained in this policy and purely for purposes of ensuring access to and expeditious delivery of justice to members of the public. a. The number of Judicial Officers at a station shall be determined by the workload at a station and the Chief Justice reserves the right to reduce or enhance the number of Judicial Officers sitting at any given station. b. No Judicial Officer may be transferred from one classified Hardship Area as set out in the Second Schedule of this Policy to another without their consultation and where circumstances permit, their consent. c. A Judicial officer may not serve in more than one Hardship Area without their consent unless six years have lapsed since they last served in such an area. 11 Transfer Policy & Guidelines for Judicial Officers

14 V Ordinary Transfers Payment of Transfer and Baggage allowance Notwithstanding anything contained in this policy and purely for purposes of ensuring access to and expeditious delivery of justice to members of the public. a. Every Judicial Officer going on TDRAFT ransfer shall be entitled to a Transfer and Baggage Allowance as will be determined by the Judicial Service Commission from time to time. b. Transfer and Baggage Allowance with respect to Ordinary Transfers shall be paid in the month before the affected officer leaves the current station. c. Transfer and Baggage Allowance with respect to Special Transfers shall be paid as soon as is practically possible, but in any event not later than one month after the Chief Justice communicates his/her approval to the Transfer. d. Transfer and Baggage Allowance will not be payable: i) Where the distance from the station the Judicial Officer is currently serving in and the one he/she is being transferred to is less than 40kms. ii) In the case of self -requested Transfers. iii) In the case of a swap. Transfer Policy & Guidelines for Judicial Officers 12

15 VI Reconsiderations Requests for Reconsideration a. A Judicial Officer who receives a Transfer notice may request for reconsideration against the Transfer, requesting either to be retained in his/her current station or to be transferred to a different station from that which s/he has been transferred, provided that these requests are consistent with this Policy, and are supported by reasonable grounds. b. Requests for Reconsideration arising out of Transfers shall be in writing and shall specify the reasons for the Request for Reconsideration. c. Requests for Reconsideration shall be addressed to the Chief Justice and must be received not later than 14 days after the Judicial Officer receives the Transfer letter. d. Requests for Reconsideration against Transfers will be reviewed by a committee comprising of: i. The Chief Registrar or his / her representative ii. The Principal Judge or his / her representative iii. The Director of the Judiciary Training Institute or his / her representative. iv. The Registrar Magistrates Courts or his/her representative v. Human Resources Director or his/her representative e. The Committee shall advise the Chief Justice of its decision not later than 14 days after receiving the Request for Reconsideration. f. The decision of the committee shall be subject to the approval of the Chief Justice. 13 Transfer Policy & Guidelines for Judicial Officers

16 VII Miscellaneous Transition For the implementation of this Policy, the present postings of the officers shall form the basis of the next posting. Discretion a. Notwithstanding anything contained in this Policy, the efficient, effective and fair administration of justice and the interests of the Judiciary shall be of paramount consideration in all Transfer decisions. b. In regard to matters which are not specifically provided or covered by this Policy, the Chief Justice may issue such general or particular directions as s/he may consider necessary to effectuate this Policy and the smooth administration of Justice. c. In case any doubt arises with regard to any aspect of his Policy or its implementation, the same will be clarified by the Chief Justice and such clarification will be treated as part of this Policy. Review This Policy will be reviewed from time to time to ensure that it serves the administration of justice, the interests of the Judiciary, and the needs of Judicial Officers. Transfer Policy & Guidelines for Judicial Officers 14

17 1 First Schedule S.13 Special Organizations and Institutions 1. The Judicial Service Commission 2. Executive Council of the Kenya Magistrates & Judges Association 15 Transfer Policy & Guidelines for Judicial Officers

18 2 Second Schedule Hardship Areas 1. Dadaab Kadhis Court 2. Garissa 3. Garsen 4. Habaswein Kadhis Court 5. Hamisi 6. Hola 7. Kabarnet 8. Kakuma 9. Kapenguria 10. Kehancha 11. Kyuso 12. Lamu 13. Lodwar 14. Mandera 15. Maralal 16. Marimanti 17. Marsabit 18. Moyale 19. Mutomo 20. Mwingi 21. Taveta 22. Wajir Transfer Policy & Guidelines for Judicial Officers 16

19 3 Third Schedule S.7 Extreme Hardship Areas 1. Dadaab 2. Garsen 3. Habaswein 4. Hola 5. Kakuma 6. Lodwar 7. Mandera 8. Marsabit 9. Moyale 10.Wajir 17 Transfer Policy & Guidelines for Judicial Officers

20 4 Fourth Schedule REGION COURT 1. Nairobi Region: Milimani, Kibera, Makadara, Milimani Commercial, City Court, Children s court, Kikuyu, Thika, Kiambu,Githunguri, Gatundu, Limuru 2. Mt Kenya Region: Muranga, Karatina,Nyeri, Mukurweini, Othaya, Nanyuki, Kigumo, Kangema, Kandara DRAFT 3. Lower Eastern Region: Machakos, Mavoko, Kitui, Kithimani, Mutomo, Makindu, Kangundo, Tawa, Kilungu, Kajiado, Makueni,Wote 4. South Rift Region: Nakuru, Eldama Ravine, Naivasha, Nyahururu, Narok, Bomet, Maralal, Sotik, Engineer, Molo 5. North Rift Region: Eldoret, Kitale, Iten, Kapsabet, Kapenguria,Lodwar, Kabarnet, Kakuma 6. North Nyanza Region: Kisumu,Bondo, Winam, Nyando,Tamu,Siaya, Maseno, Ukwala 7. South Nyanza Region: Kisii, Homabay, Migori, Ogembo, Oyugis, Ndhiwa, Rongo, Keroka, Mbita, Kehancha, Nyamira 8. Bungoma/Busia Region: Bungoma, Busia, Kimilili, Sirisia, Webuye 9. Kakamega Region: Kakamega, Vihiga, Butali, Mumias, Butere, Hamisi 10. Coast Region: Voi, Mariakani, Taveta, Wundanyi, Mombasa, Kaloleni, Shanzu, Kwale, Kilifi, Garsen, Lamu, Malindi, Hola Transfer Policy & Guidelines for Judicial Officers 18

21 11. Nairobi Region: Garissa, Mandera, Wajir, Kyuso, Mwingi, Habaswein Kadhis Court 12. Upper Eastern Region: Meru, Nkubu, Marimanti, Chuka, Githongo,Isiolo, Marsabit, Tigania, Maua Moyale 13. Embu Region: Embu, Runyenjes, Wanguru, Gichugu, Baricho, Kerugoya 19 Transfer Policy & Guidelines for Judicial Officers

22 Notes Transfer Policy & Guidelines for Judicial Officers 20

23 Notes 21 Transfer Policy & Guidelines for Judicial Officers

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