Kiambu law courts Principal Magistrate Brian Khaemba is a happy man after the labour ruled that his suspension by the Chief Justice was unlawful.
Justice Byram Ongaya of the employment and labour relations court ruled that Khaemba’s suspension infringed his rights and therefore was entitled to seek court intervention.
“The suspension was pre mature and in breach of the statutory laws. The petitioner was entitled to move to court,” the judge ruled.
Khaemba was suspended after granting embattled Kiambu County Governor Ferdinand Waititu anticipatory bail on 23rd May this year.
It was alleged that Khaemba was not in a position to handle the file since he had indicated to his immediate boss that he was unable to go to work that day as he was unwell.
In his reply, the magistrate responded to the CJ saying that he felt better and decided to report to work at around 11 am.
He added that upon arrival to work, he did inform his superior that he had reported and was given Waititu’s file to handle since he was the only available magistrate that afternoon.
A day after giving his explanation, Chief Justice David Maraga sent him a suspension letter saying his explanation was unsatisfactory and that he had no right to handle the file since it was not assigned to him.
The letter also indicated that he was suspended without pay contrary to the Judicial Service Act.
In his judgement, Justice Ongaya found that no provision requires an employee to be suspended on nil salary.
“The suspension did not safeguard the requires provisions. The petitioner was suspended indefinitely and was entitled to lament,” the judge ruled.
The judge further found that it was not contested that the CJ did not act in bad faith and had no personal vendetta against the petitioner.
The court ordered that Khaemba be paid accrued salaries, allowances and statutory benefits withheld throughout the suspension by 1st September and report back to work in his position by 9th September 2019.
While addressing media after the judgment, Kenya Magistrates and Judges Association (KMJA) Secretary General Derrick Kuto said that the judgement will serve justice to other judicial officers who have been suspended without being accorded a chance to defend the allegations against them before the Judicial Service Commission (JSC).
KMJA has also filed a petition challenging the power of the CJ to suspend and extradite judicial officers.
The body wants court to declare that the Chief does not have such powers and that JSC is the one obligated to deal with disciplinary issues of judicial officers including judges and magistrates.
Dissatisfied with the judgement, the CJ and JSC who are the respondents in the petition sought stay of the decision pending their appeal.