BY SAM ALFAN.
The Judicial Service Commission (JSC) and former Chief Justice David Maraga have lost an appeal seeking to reverse a decision of the Employment and Labour Relations court reinstating former Kiambu magistrate Bryan Khaemba.
Court of Appeal judges Asike Mukhandia, Sankale ole Kantai and Pauline Nywamweha dismissed Maraga and JSC’s appeal saying the trial Judge Byram Ongaya did not err in granting orders restoring Khaemba to the status he was before he faced disciplinary proceedings.
“The orders in the judgment of the trial Court dated August 30,2019 in Nairobi ELRC Petition No. 100 of 2019 are hereby upheld, save to the extent that they may have been modified or qualified by the findings made in this judgment,” the Judges said.
The appellate judges said it was demonstrated and found that the disciplinary process by the JSC against the Khaemba was marred with illegality and procedural irregularity, from the start.
The judges added that it was evident that the retired Chief Justice had already made a finding in the letter dated June 13, 2019 that Khaemba’s actions amounted to gross misconduct, and therefore, culpable.
The court found that Khaemba was also subjected to extreme hardship having been illegally and indefinitely suspended with zero pay.
“In conclusion, this Court also finds that the impugned disciplinary process, having been irregular and illegal ab initio, meant there were no valid proceedings that could be remitted back to the Appellants for consideration,” said the judges.
In his decision on August 30, 2019, the Employment court found Maraga’s decision to suspend the former Kiambu Senior Principal Magistrate was unlawful and declared the decision, by CJ null and void.
“The suspension was unlawful and unfair”, ruled the judge.
The Judge said Maraga’s decision was in contravention of Articles 41,47(I) and 236 of the constitution and infringed Khaemba’s fundamental rights and went ahead to quash the CJ’s letter.
The suspension follows a ruling by Khaemba granting former Kiambu Governor Ferdinand Waititu anticipatory bail of Sh500,000 pending his prosecution.
Other than reinstatement, the court directed JSC to pay Khaemba 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.
The magistrate later resigned from the Judiciary.
