BY SAM ALFAN.
Jubilation among Judiciary staff has greeted the come-back of Lucy Njora, the former Deputy Registrar of the Supreme Court.
Njora has triumphed over her disgraceful sacking by the Judicial Service Commission (JSC) nearly five years ago for alleged “insubordination and gross misconduct.”
Njora was shown the door after the infamous fall-out among Supreme Court Judges over the controversial 70-year retirement age for judges.
The Court of Appeal has now ordered the JSC and the Chief Registrar of the Judiciary (CRJ), Anne Amadi, to reinstate Njora with salary and benefits since her dismissal effective from June 15, 2016.
Retired Chief Justice Willy Mutunga had interdicted Njora for alleged gross misconduct and gave her 21 days to respond. She was placed on half salary and required to report every Friday to the CRJ pending the outcome of disciplinary proceedings by the JSC.
The succession battle in the Supreme Court-following the imminent departure of Dr Mutunga- was sparked off by the dismissal by the Court of Appeal of resistance by the then Deputy Chief Justice Kalpana Rawal and former Supreme Court Judge Philip Tunoi of the 70-year retirement requirement.
Justices Rawal and Tunoi had challenged the High Court’s affirmation that all Judges, including those appointed before the promulgation of the 2010 Constitution, were to retire at 70 years.
The two aggrieved former Judges, who insisted that they qualified for retirement at 74 years, met their Waterloo on May 27, 2016 when an extraordinary seven-member Appellate bench upheld the High Court’s decision.
Matters came to a head immediately after the judgment was pronounced. Lawyers acting for the two former Judges successfully applied for conservatory orders before Supreme Court Judge Njoki Ndungu.
Njora came to the limelight after Dr Mutunga and Justice Ndungu exchanged e-mails regarding the matter. Dr Mutunga swiftly rescinded the orders suspending the Court of Appeal judgment.
Eventually, on the eve of Dr Mutunga’s exit, the Supreme Court in a split decision confirmed the 70-year retirement requirement for all Judges.
Interestingly, the remaining Supreme Court Judges, under acting President Ibrahim Mohamed, took the collective position that the issues forming the basis of Njora’s interdiction had been fully resolved by the Supreme Court itself and that any further disciplinary action was unwarranted.
However, Njora was locked out of office after CRJ Amadi said she had no power to accommodate her continued stay.
The JSC summoned Njora on January 25, 2017 but she asked for more time to prepare her defence. The matter was postponed to April 27, 2017 when Njora appeared together with her lawyer, Senior Counsel George Oraro.
After hearing testimony from eight witnesses, the JSC committee found Njora guilty of insubordination and gross misconduct. The full JSC accepted the recommendations at it’s meeting held on January 26, 2018 and decided to dismiss Njora from judicial service with effect from June 15, 2016.
Njora moved to court on June 6, 2018 and cried foul of JSC’s discrimination, harassment and removal from office without due process. The JSC and CRJ denied her accusations and asked the Employment and Labour Relations Court to dismiss her 35-page petition.
However, in a judgement delivered on September 20, 2019, Justice Nelson Abuodha ruled in Njora’s favour. He directed the JSC and CRJ to reinstate Njora to her previous posting with salary and benefits.
In the latest development, Appellate Judges Patrick Kiage, Gatembu Kairu and Fatima Sichale upheld Justice Abuodha’s decision. They said JSC and CRJ did not demonstrate that the Judge abused his discretion by ordering Njora’s reinstatement.
“Once a dismissal decision involving a State Officer is adjudicated unlawful, null and void, reinstatement is an automatic remedy,” Justice Kiage said in his lead 42-page judgement delivered on Friday last week.
However, the bench dismissed Njora’s cross-appeal seeking Sh70million in general damages for “the reckless and deliberate abuse of power by the JSC and CRJ. She had claimed the disciplinary process that resulted in her dismissal took too long and subjected her to social media ridicule by way of “leaked confidential information.”
The three-Judge appellate bench dismissed an assertion by the JSC and CRJ that Njora should have exhausted the internal appeal mechanism in accordance with the Judicial Human Resources Policy Manual before lodging the case in court.
“Given the predilection exhibited by JSC in it’s entire attitude towards Njora, some of it on full display in the manner she was questioned by the committee, I think an appeal to the same JSC would have served no purpose as the decision-maker had already made up it’s mind, ” Justice Kiage reasoned in the judgment.
“It is time employers understood that in taking drastic dismissal actions that cut short the careers and livelihood of employees, they should be sure that they are acting reasonably and fairly with dismissal being a necessary step.
“They must eschew and resist the temptation to flex corporate muscles, settle scores or appear to be plain bullies because they are boss. It is not for nothing that by statutory command, the duty to show that the dismissal was justified is always on the employer. Whichever way it is viewed, Njora’s dismissal was clearly unjustified, ” Justice Kiage emphasized.
“Taking all the unusual circumstances of this case, I have no difficulty in arriving at the conclusion that Justice Abuodha reached, that Njora’s dismissal was a disproportionate reaction from the JSC, unreasonable and without any valid justification,” Justice Kiage observed.
“I’m unable to discern a reasonable or logical nexus between Njora’s innocuous actions and the extreme reaction by JSC. It’s actions smirked of victimization and an attempt to make someone pay for the embarrassing events that surrounded the two applications before the Supreme Court. She was made to carry that burden of embarrassment and discomfiture as some kind of scapegoat.
“There was no reasonable basis for the decision to hoist that cross upon her. The dismissal decision imposed upon her was irredeemably tainted with irrationality, was altogether disproportionate and was properly invalidated by Justice Abuodha, ” Justice Kiage concluded.
