Khaemba suspension was unlawful and unfair.
BY SAM ALFAN.
Chief Justice David Maraga has suffered a major blow after court found his decision to suspend Kiambu Senior Principal Magistrate Bryan Khaemba unlawful.
Employed and Labour Relations Court declared decision by CJ to suspend Khaemba as null and void.
“The suspension was unlawful and unfair”, ruled the judge.
Judge Byram Ongara said Maraga decision was in contravention of Articles 41,47(I) and 236 of the constitution and infringed Khaemba’s fundamental rights.
The employment judge quashed the decision by the Chief Justice contained on the the letter issued on June 13,2019 suspending Bryan Khaemba after he granted Kiambu Governor Ferdinand Waititu anticipatory of Kshs. 500,000 pending prosecution.
The court also issues a permanent injunction prohibiting Judicial Service Commission and the Chief Justice from implementing the decision contained in the Chief Justice’s letter dsted July 13,2019 and from taking any adverse against Khaemba pursuant to the said decision.
Khaemba will be paid all his salaries, allowances and given all other due contractual and statutory benefits withheld throughout the suspension period.
“Khaemba to continue in employment without loss of rank, status, all attached benefits and the JSC and CJ to pay him due some of money by November 11,2019 failing interest at Court rates to be payable from the date of this judgement till full payment and further to report to the JSC,CJ not later than September 9,2019 for appropriate deployment and assignment”, ordered judge Ongaya.
Court ordered Khaemba to serve Attorney General with the court judgement within 7 days to take appropriate action within his constitutional and statutory roles to correct the anomaly that the court identified in number of paragraphs as referred to in paragraph 15 of the Third Schedule of Judicial Service Act.
The judge in his 72 page judgement said Khaemba acted in good faith and has not been shown to have acted in bad faith or in interests outside his official roles and court found he did not violate articles 10,73,232 and 236 as was sought.
He said court was guided by section 45(1) of the Judicial Service Commission Act that the members of the Judicial Service Commission shall not be liable to any civil action or suit for or in respect of any matter or thing done or omitted to be done in good faith as a member of JSC.
Kenya Judges and Magistrate Association welcomed the court decision saying it was a reprieve to judicial officers who had been working on fear.
This decision is a big win not only for Khaemba but for the entire members of judicial fraternity, all the magistrate and judges.
“I dare say these are issues that has been put before the administration , these are issues have been put before Judicial service commission and Chief Justice. Am happy that now there has been a clear direction that JSC should come with clear procedures within the law”, SG Kutto said.
Speaking outside Milimani court building, Kuto added that many judicial officers out there are suffering and people have been working with a lot of fear because they feel that any time they get suspension without being given opportunity to explain themselves.
Khaemba trouble started after granting embattled Kiambu County Governor Ferdinand Waititu anticipatory bail orders on 23rd May this year.
It was alleged that Khaemba was not in a position to handle the file since he had indicated to his immediate boss that he was unable to go to work that day since he was unwell.
In his reply, the magistrate responded to the CJ saying that he felt better and decided to report to work at around 11 am.
He added that upon arrival to work, he did inform his superior that he had reported.
A day after giving his explanation, Chief Justice David Maraga sent him a suspension letter saying his explanation was unsatisfactory and that he had no right to handle the file since it was not assigned to him.
The letter also indicated that he was suspended without pay contrary to the Judicial Service Act.
Judge found that no provision requires an employee to be suspended on nil salary.
“The suspension did not safeguard the requires provisions. The petitioner was suspended indefinitely and was entitled to lament,” the judge ruled.
The judge further found that it was not contested that the CJ did not act in bad faith and had no personal vendetta against the petitioner.
The court ordered that Khaemba be paid accrued salaries, allowances and statutory benefits withheld throughout the suspension by September 1, and report back to work in his position by September 9, 2019.
