Court clears Shollei of wrong doing, says sacking was ‘a total failure of justice’

By Kurian Musa  and JOHN MUTHONI

Nairobi, Kenya: The Industrial Court has cleared former Chief Registrar of the Judiciary Gladys Boss Shollei of any wrongdoing during her tenure in office.

The court quashed the decision by the Judicial Service Commission (JSC) to remove her from office, saying it violated her constitutional rights.

Justice Nduma Nderi nullified the letter by JSC dated October 18, 2013 that removed Shollei from office, saying it violated her fundamental human and employment rights. Delivering his judgement in the case Shollei had filed against the JSC, Nderi said the former registrar was entitled to compensation for the unlawful and unfair loss of employment and violation of her constitutional rights.

He also ordered that a significant enquiry be done. The judge further reprimanded the JSC,  saying it gravely failed Shollei in her hour of need. “Every person is equal before the law and has the right to equal protection and equal benefit of the law,” said Nderi.

He said it was difficult to understand the shortcut taken by “very eminent members of the legal profession” in a situation where the mandatory procedure of removal should have been followed.

“It was a deliberate act in violation of the Constitution to achieve what the time consuming procedures of the commission could not achieve. The desire was to get the applicant quickly,” the judgment read.

Null decision

The court found that the commission not only acted contrary to the JSC Act 2011 and its regulations, but also violated the constitutional rights of the former CRJ. “The end result was a total failure of justice. The decision by JSC was a nullity as it was made in excess of jurisdiction and in gross violation of the rules of natural justice,” said Nderi.

After the ruling, Shollei’s lawyer Donald Kipkorir said his client was now free to return to her job if she wishes as the status quo before she was hounded out office remains the same. Kipkorir also told the Chief Justice to obey the court order in the same manner he has been calling for obedience of the same.

In his ruling, the judge said the proceedings and the decision by the commission were conducted in total disregard of its own regulations. Justice Nderi further observed that the commission had deviated from mandatory procedure set under regulation 25. He said the JSC ought to have set up a disciplinary committee or a panel to hear the issues raised against Shollei.

“The disciplinary committee or panel was supposed to hear the disciplinary case as alleged by JSC, completely and independent of the commission. Only after it had made its findings in writing could it communicate back to the commission,” he added.

Justice Nderi said Chief Justice Willy Mutunga is prohibited to sit in the disciplinary panel and wondered how he had chaired it. “The court fails to understand why the CJ insisted to chair the panel even when the allegation of bias had been made against him and was specifically requested to recuse himself,” he said.

The judge pointed out that it only requires at least three members to hear the disciplinary case and was therefore unreasonable for the commissioners and the CJ to continue sitting in the process after Shollei raised bias and corruption allegations against them.

He said Shollei had accused commissioners Ahmednasir Abdullahi, Christine Mango, Justice Mohamed Warsame and Emilly Ominde of bias.

She had also accused Warsame of nepotism and tribalism, Ahmednasir of personal interest for the purchase of a building in Mombasa and Nairobi’s Eastleigh and in the procurement of ICT infrastructure.

“The allegations made especially against the CJ and commissioner Ahmednasir Abdullahi are of such serious nature that any reasonable person would have reasonable apprehension of bias in the circumstances,” he added.

‘War council’

However, the court said it was not in a position to investigate the alleged 200-page emails by the ‘war council’.

JSC had denied that none of the commissioners or the respondents are mentioned in the trove of emails, saying they had no origin. The commission also said Shollei was dismissed on the basis of the charges proven against her as contained in their report.

But yesterday, the court ruled that Shollei’s fear of bias in the disciplinary proceedings were real from a standers point of view. In his submissions, Kipkorir had said that the fate of Shollei was pre-determined and executed as stipulated in the bundle of emails provided in court.

“Their plans have gone as per the emails, the CJ was to get support of the Judiciary staff after the dismissal of my client and this came to pass,” Kipkorir said. In his ruling, the judge observed that Shollei was not accorded sufficient time to respond to the allegations laid against her and that she was denied sufficient time to gather information from other departments, thereby contravening her rights to information as stipulated in law.

“Shollei wanted time to defend herself from a Sh1.2 billion purported loss of funds from the Judiciary. No witness was brought to the disciplinary panel for cross examination over the alleged loss of funds and JSC, in their submissions, only told the court that they were carrying out investigations,” Justice Nderi said.

He further noted that JSC would have involved other state agencies like Ethics and Anti Corruption Commission and Director of Public Prosecutions in developing the alleged corruption charges against Shollei.

Justice Nderi said EACC had dismissed the five counts leveled against Shollei, including incompetence, misbehavior, violation of prescribed code of conduct for judicial officers, violation of Chapter Six and Article 232 of the Constitution and insubordination.

Kipkorir hailed judgement, saying his client only wanted to be heard, a prayer that JSC vehemently declined to grant. “I am happy and hope my learned friends will not appeal,”he said.

However, JSC’s lawyer Issa Mansur was granted stay orders for any proceedings of compensation to Shollei as he consults his client on whether or not to appeal against the ruling.