BY SAM ALFAN.
Suspended Kiambu Senior Principal Magistrate Bryan Khaemba now wants Chief Justice David Maraga cited for contempt after failing to reinstate him some 33 days after he won a case quashing his suspension.
Employment and Labour Relations Court found CJ’s and Judicial Service Commission’s decision to suspend Khaemba was unlawful and declared the decision as null and void. “The suspension was unlawful and unfair”, ruled the judge.
In a petition filed under certificate of urgency, Khaemba told the court that Justice Maraga, JSC and its officers are guilty of disobedience of orders issued by Justice Bryam Ongaya on August 30.
He said they were directed to immediately reinstate him and release his withheld payment in full. He said the CJ has disobeyed the same orders he has urged Kenyans and government to respect regardless of whether they are on their favour or not.
The magistrate said on February 7, 2018, Justice Maraga issued a press statement titled STATEMENT ON FAILURE TO COMPLY WITH COURT ORDERS.
In his statement, he said there have been worrying developments in the administration of justice that threatens the rule of law. “The recent disregard of court orders is an act that is not only inimical to the rule of law but is also completely at odds with Kenya’s constitutional outlook,” Justice Maraga said.
The CJ then assured the country that the judiciary will continue to dispense its constitutional duty with independence, authority and they will ensure that rule of law, justice, good governance and equality before the law are entrenched through our courts.
In the petition, Khaemba said the court has been and continues to be exposed to ridicule, disrepute and it is in the interest of justice and for the purpose of upholding the dignity of the court JSC and CJ should be punished for the contempt court.
“The respondent are hell-bent on sanitising their noncompliance and circumventing the court judgment and orders by seeking refuge in the appellate court discretionary authority,” he said.
The magistrate said that CJ Maraga and JSC deliberate inaction and failure to obey the court judgment is a calculated effort to visit pecuniary embarrassment upon him as a judicial officer of rank of Principal Magistrate.
He said it will further expose him to loss of his rank and status contrary to the express and unambiguous pronouncement of the court.
“Unless an order is made and both CJ, JSC and their officers punished for their utter contempt and complete disregard of the court order made on August 30,2019, they will persist with their acts or omission thus lowering the dignity of the court and subject it to public odium and ridicule”, said Khaemba.
Khaemba added that the CJ should be answerable for their actions, omissions and be compelled to obey court orders by punishing them.
“The respondent and its officer were duly served with the orders but in blatant breach and arrogance ignored the authority and dignity of the court and have neither reinstated me to my work nor have they remitted the emoluments previously withheld from him, despite existence of the court order,” he said.
Magistrate Khaemba further adds the CJ and JSC has filed an appeal seeking to stay the execution against the judgement of the court in the court of appeal and therefore there is indication that they are not keen to comply with the court decision.
In his judgement, Justice Ongaya said Maraga’s decision was in contravention of Articles 41,47(I) and 236 of the constitution and infringed Khaemba’s fundamental rights.
He then quashed the decision by the Chief Justice contained on the letter issued on June 13,2019 suspending Khaemba after he granted Kiambu Governor Ferdinand Waititu anticipatory of Kshs. 500,000, pending his prosecution.
The court also issued a permanent injunction prohibiting JSC and the CJ from implementing the decision contained in the letter 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.
