BY SAM ALFAN.
A Judge has ordered the Judicial Service Commission to compensate it’s finance director Sh3.5 million for keeping her in acting capacity for more than six years.
The Employment and Labour court also ordered JSC to confirm Susan Khakasa Oyatsi as the substantive holder of the position after quashing an advertisement calling for applicants to the post. The notice was published in local dailies in June last year.
Justice Nduma Nderi ruled that the move to keep Oyatsi in an acting position for years was unlawful and in violation of her right to fair labour practice.
“Judicial Service Commission (JSC) is directed to pay the petitioner total underpayment calculated at Sh 3,572,320 per year from May 2, 2018 to-date.
Justice Nduma Nderi quashed the JSC decision contained in an advertisement for the position of Director Finance found in JSC’s website and in the local daily dated June 29, 2021.
The judge also declared that the Oyatsi is deemed to have been lawfully appointed to the position of Director Finance upon expiry of eighteen months from the date of appointment in acting capacity on December 2, 2016.
In his decision, Judge Nderi declared that that JSC violated her rights under Articles 27, 28, 35, 41 and 47 of the Constitution of Kenya, 2010 as set out in this judgment and directed JSC to compute the special damages under Clause (c) above, serve the petitioner and file with Court for confirmation within sixty days of this judgment.
“In the final analysis, upon a careful weighing of the depositions, documentary evidence and submissions by the parties and in line with the law and relevant authorizes placed before Court, the Court finds that the petitioner has proved her case on a balance of probabilities and the petition succeeds accordingly,” the Judge observed.
Justice Nderi said the failure by JSC to timeously provide written reasons to her as to why she was not confirmed to the position of Director and why she was deemed unsuccessful twice in 2015 and 2019 despite demand also violated Article 47(1) and (2) of the Constitution read with Section (6) of Fair Administrative Action Act No. 4 of 2015.
She said Oyatsi was denied reasonable and fair conditions of employment.
The director moved to court seeking for compensation of special damages amounting to Sh 22,862,848.00 and for general damages for discrimination, violation of the petitioner’s right to human dignity and self-worth.
She accused the Judiciary of violating her right of access to information, fair labour practices, fair administrative action and freedom from servitude.
She also sought the court to restrain JSC from taking her back to a position which is lower than her current position of Director finance (job group JSG 1) or victimizing or treating the petitioner unfairly on account of instituting this petition.
