Court lifts suspension of Magistrate Brian Khaemba

A Nairobi court on Friday ordered the reinstatement of suspended Kiambu Principal Magistrate Bryan Khaemba.

The magistrate, while on sick leave, gave anticipatory bail to embattled Governor Ferdinand Waititu who is facing a Sh588 million graft charges.

Mr Khaemba gave orders on May 23, 2019 by the directing the Director of Public Prosecutions not to arrest and charge Mr Waititu by giving the governor an anticipatory bond.

Mr Khaemba, who was suspended by Chief Justice David Maraga on June 13, 2019 for gross misconduct, was reinstated with full benefits.

He will resume duty on September 9.

BENEFITS

The Employment and Labour Relations Court ordered the Judicial Service Commission (JSC) to pay the judge all his benefits by November 1, 2019.

“An order is hereby issued quashing the decision to suspend from his employment,” Justice Byram Ongaya ruled.

He issued a permanent injunction to JSC not sack or take any disciplinary action against Mr Khaemba over the Waititu bail order.

In his judgment Justice Ongaya said no judicial officer should be victimised for decisions or pronouncements made in the course of their duties.

Justice Ongaya said the petitioner (Mr Khaemba) who challenged his suspension through lawyer Nelson Havi, had established he was victimised for discharging his official duties.

“Mr Khaemba was victimised for discharging the duties he was employed to do, he did no wrong,” the judge ruled.

MILESTONE

And the Kenya Magistrates and Judges Association Derrick Kuto welcomed Mr Khaemba’s reinstatement saying, “it was a milestone for the judiciary in upholding the rights of its officers.”

Justice Ongaya said the rights of Mr Khaemba were violated by letter authored by Chief Justice Maraga who had directed he proceeds on suspension with no salary.

The CJ further cancelled Mr Khaemba’s transfer to Thika Law Courts from Kiambu pending the outcome of the disciplinary case against him.

The CJ had said the magistrate exhibited misconduct by granting orders to Waititu when he was not in conduct of the case.

Justice Ongaya however spared the CJ from paying costs of the petition saying, “he was discharging his administrative action since he was the chairperson of JSC.”

He said Justice Maraga acted based on the information he had received that Mr Khaemba gave the orders when he returned to work when he had been given sick leave.

The judge said Mr Khaemba’s rights were violated by the CJ who was exercising mandate in line with the JSC Act.

The judge directed JSC lawyer Issack Wamasa to file a formal application.