BY SAM ALFAN.
A former Senior Prosecutor has lost his bid to be reinstated after the High Court dismissed his petition saying there was nothing to show that his rights were violated.
Employment and Labour Relations court Nzioki wa Makau dismissed the petition by James Makura M. Abira, saying no constitution “questions arose to elevate the dispute to the rarefied sphere of constitution petition”.
“In the final analysis I find that the preliminary objection succeeds and the petition is hereby struck out with no orders as to cost” ruled Makau.
The former prosecutor had served at the then DPP’s office being a department under Attorney General’s office as state counsel II.
He was employed by the solicitor general on December 15, 2003 but on June 23, 2011 he was served with a letter requiring him to cease exercising his duties until a criminal case he was facing was heard and determined.
He had been charged that being a senior prosecutor at the office of Director of Public Prosecution, he solicited and received a bribe of Sh25,000 from Peter Chania Magere. He allegedly committed the offence on June 20, 2011 for Magere’s case to be taken to court. He was later dismissed, although the court acquitted him of bribery charges.
He then sued the DPP for failure to lift the interdiction claiming that his right to fair administrative action and fair labour practices was violated.
He claimed he was dismissed contrary to the law since his salary was stopped contrary to section 62(3) of the Anti-corruption and Economic crimes Act, which entitled him to automatic reinstatement after acquittal.
Justice Makau dismissed the petition saying Abira did not particularize and articulate in the petition the particular right said to have been infringed or every allegation of constitutional breach.
DPP through his senior director assistant of prosecution Duncan Ondimu opposed the petition.
The court heard that on March 18 this year, an advisory board in the office of the DPP recommended Abira’s dismissal on the account of gross misconduct.
DPP told the court that on May 22, 2019, Abira was issued with a show cause why disciplinary action should not be taken against him in accordance with section 11.15 of the ODPP human resource manual and he responded on June 3, 2019.
His response was placed before the advisory board and he was accorded a fair hearing before the decision to dismiss him from the prosecution office was reached and the decision reached did not offend the constitution.
It was submitted that the show cause letter clearly enumerated what actions by Abira constituted gross misconduct as per section 44(1) of the Employment act.
