BY SAM ALFAN.
Judicial Service Commission (JSC) has been ordered to reinstate sacked Kisumu Magistrate Phyllis Lusiah Shinyada.
The Employment and Labour Relations court declared that decision by JSC to dismiss Shinyada a violation of her constitutional rights under the Employment Act, 2007.
Justice James Rika quashed the decision by the JSC to dismiss her from judicial service on the ground of incompetence
“The Petitioner (Shinyanda) is granted an order of automatic reinstatement, without loss of rank, salary and benefits from the date of dismissal,” ordered the Judge.
The Magistrate was sacked over a criminal matter she handled at Kisii law courts. She was accused of issuing orders, releasing a motor vehicle, contrary to the orders issued by the High Court.
Shinyada told the Employment Court that on March 27, 2019, JSC informed her that the commission had met on March 12, 2019, and deliberated on her case.
The Commission later resolved to dismiss her from service, in exercise of its mandate under Article 172 [1] [c] of the Constitution, and pursuant to Regulation 25 [11], Part IV, 3rd Schedule, of the Judicial Service Act.
The letter, signed by the commission’s Secretary who is also Judiciary Chief Registrar Anne Amadi, giving reasons for terminating her services.
In her dismissal, the JSC accused her of failing to perform her duties in an efficient and competent manner as required by the JSC Code of Conduct and Ethics.
She was accused of dereliction of duty, lack of competence, diligence in discharge of her duties, which amounts to gross misconduct and incompetence.
But she explained that she was administratively assigned the file, after all other Magistrates at the Station recused themselves from the case.
The motor vehicle in question had been attached and sold to a third party through a public auction and that she could not revert it to the complainant through an application.
She added that failure to grant orders reverting the motor vehicle to the complainant did not mean that justice was lost because he could still appeal, seek review or file a claim for damages against the auctioneers.
She further stated that the allegations in the charge sheet, were not investigated and ascertained. “JSC is an Independent Commission, and ought to have investigated the matter, on receiving communication from the J.M.V.B. No investigation was carried out by the Respondent. A preliminary investigation, before engaging in full investigation, was an administrative and constitutional imperative. Preliminary investigation ought to have been carried out by the Judiciary Ombudsman or any other person deputizing the Chief Justice”, she argued.
However, JSC said there were five complaints against her at the magistrates vetting board some of which tainted the public image of the Judiciary.
“It was not true that J.M.V.B, found the Petitioner suitable to continue serving. But to the contrary made adverse findings against the Petitioner on all 5 charges, and declared she was unsuitable to continue serving. The Chief Registrar exhibits the Determination of the J.M.V.B in her Affidavit,” said the commission.
