The Judicial Service Commission (JSC) is finding it increasingly difficult to remove some judges and magistrates from office.
Whereas the JSC through its advocates has put forward some strong cases against some judges and magistrates, these judicial officers in fighting to save their career, have made it clear that you cannot pick up a fight with a cook in the kitchen, when you don’t know where the knife is kept.
The judges and magistrates only know too well how best to package your case if you are to stand a good chance of persuading the court.
And so when the JSC attempted to flex its muscle on Jackton Ojwang (Supreme Court judge), Erastus Githinji (Court of Appeal judge), Daniel Ochenja (acting Chief Magistrate), Bryan Khaemba (Principal Magistrate) and Davis Gitonga (Principal Magistrate), it was left with a lesson or two, on how not to handle a judge or magistrate.
Employment and Labour Relations Court Judge Byram Ongaya faulted JSC for failing to give Court of Appeal Judge Githinji lawful reasons for the imposition of his retirement date as July 1, 2019 when the documents the judge had provided show that he ought to retire on December 30, 2019.
“Thus the court finds that justice Githinji’s date of birth was on December 30, 1949 and he will attain 70 years of age on December 30, 2019 and not on July 1, 2019. Thus the date of retirement as imposed to be July 1, 2019 is found to have been unreasonable and illegitimate,” Justice Ongaya ruled.
He gave his date of birth as 1949 when employed as a magistrate. Subsequently, in accordance with provisions of the Births and Deaths Registration Act, the applicant obtained a birth certificate on October 29, 1999, showing that he was born on December 30, 1949.
On-line personal details maintained by the JSC showed his date of birth as December 30, 1949.
Later on December 22, 2011 the judge provided the same date of birth by completing the vetting questionnaire issued by the Judges and Magistrates Vetting Board.
He has consistently completed the declarations of incomes, assets and liabilities as required under the Public Officer Ethics Act, 2003 using similar details.
“The JSC and the Chief Registrar of the Judiciary (CRJ), have not shown that they ever asked the judge to make a clarification about his date of birth,” said justice Ongaya, adding that it would be unjustified and unfair for the JSC and CRJ to shift their statutory obligation and make it Justice Githinji’s burden.
He said given the evidence presented in court, Justice Githinji clearly notified about his date of birth, but JSC and CRJ made no demand for a clarification.
“The court returns that the decision to retire justice Githinji prematurely amounted to an adverse action or punishment without according him due process of justice,” Judge Ongaya said in the June 28 judgment.
Regarding Principal Magistrate Bryan Khaemba, the judge held that his suspension as imposed did not comply with the law.
The suspension letter dated July 13, 2019 and signed by Chief Justice David Maraga, imposed conditions such as nil pay, handing over of all government stores in Magistrate Khaemba’s possession and preparing a detailed handover report to the Chief Magistrate.
Justice Ongaya said it had not been shown that such and other conditions in the suspension letter had been prescribed by JSC’s regulations.
The law also provides that an officer may be suspended if she or he has been convicted of a serious criminal offence or if proceedings for dismissal have been taken against an officer, and as a result of those proceedings, the Chief Justice considers that the officer ought to be dismissed. Neither of the conditions were met.
Having found the suspension to have been unlawful, “the court returns that Principal Magistrate Khaemba’s right to fair labour practices were infringed,” Justice Ongaya ruled on August 30.
He further awarded Mr Khaemba all salaries, allowances and benefits that had been withheld throughout the suspension to date and that he continues in employment without loss of rank, status, and all attached benefits.
A tribunal appointed to investigate the conduct of Supreme Court Judge Jackton Ojwang made critical observations regarding the manner the JSC reached a conclusion that a recommendation be made to President Kenyatta for the appointment of a tribunal to investigate the top judge.
The tribunal chaired by Court of Appeal judge Alnashir Visram said that on evaluation of the evidence, “we find that there was insufficient basis for asking the President to form a tribunal to inquire into the conduct of the judge.”
The May 8 judgment read: “This then leads us to the conclusion that there is need to establish a procedural threshold applicable by the JSC. This would include tests and standards that ought to be met at every stage of processing a petition before a recommendation to the President is made.”
The tribunal stated that the dismissal of a constitutional office holder from office is a grave and final decision. It not only impacts livelihoods, it also affects reputations and lowers the esteem ascribed to.
Therefore, it is evident that given the serious nature and gravity of such a decision, the JSC is required, at the bare minimum, to observe certain procedural safeguards.
Employment and Labour Relations Court Judge Hellen Wasilwa said in a June 14 judgment that the disciplinary process leading to the dismissal of Acting Chief Magistrate Ochenja was not conducted in accordance with the law.
The interdiction occurred when he was on leave and no one bothered to call him.
“This buttresses the contention by Acting Chief Magistrate Ochenja that he was unfairly and unjustly condemned as witnesses testified in his absence and he had no opportunity to cross-examine them,” Justice Wasilwa said.
It also emerged that during the disciplinary hearing before the JSC, the testimony by one of the witnesses contradicted that of the lawyer who was acting in the case before the magistrate, and which was the subject of the complaint before the commission.
Justice Wasilwa also noted that Acting Chief Magistrate Ochenja has been a career judicial officer from 1993 — a span of close to 26 years. There is no evidence that he had not performed his duties diligently before.
In April, justice Wasilwa held that it was not lawful for JSC to sit on a disciplinary case against Principal Magistrate Davis Gitonga for more than a year.
“I do agree with Principal Magistrate Gitonga that a disciplinary process that takes 15 months to handle is long, coupled with undue delay and painful to the employee who has to wait with uncertainty on the date that awaits him,” Justice Wasilwa stated in the April 30 judgment.