Respondents flouted commission regulation

By Nyakundi Nyamboga

A Chief Magistrate, Joyce Manyasi, moved the High Court on July 12, 2005, to challenge a decision to retire her from the Bench.

She named Chief Justice Evan Gicheru, then High Court Registrar Charles Njai, the Judicial Service Commission and the Attorney General as persons to explain the decision to retire her on June 7, 2005.

She was accused of allegedly participating in a judicial officers’ strike, pushing for better terms of service.

Implementing decision

In her application, she sought orders prohibiting the respondents from implementing the decision of the Judicial Service Commission to retire her on grounds of public interest.

She also sought an order requiring the respondents to ensure she receives her salary, allowances and other benefits.

Through lawyer Mohammed Nyaoga, Manyasi argued Gicheru’s decision to retire her was "rash, unreasonable, unfair and unjust".

She denies participating in any strike and avers she was not given a hearing contrary to the rules of natural justice.

She argues the Judicial Service Commission was incapable of acting fairly in the matter as its chairman, the Chief Justice, and its Secretary, the Registrar of the High Court, were complainants against her, and that the two acted as complainant, prosecutor, judge and executor in the absence of the accused.

Nyaoga submitted that the respondents had flouted Regulation 28 of the Judicial Service Commission Regulations, which requires that a retirement candidate must be given notice of that intention and a chance to defend himself or herself after being served with interdiction letters.

The respondents opposed the application.

Swore affidavit

In support, they swore two affidavits, the first by Francis Kipsang, a Chief Inspector of Police at Machakos Law Courts, who said that on March 14, 2005, prisoners were brought, but by the time Manyasi’s court convened, the accused persons had left.

The second affidavit was by Njai, who averred that on March 14, 2005, he was informed the operations of Machakos Law Courts had come to a standstill and that no business was transacted on the said date, as magistrates in the station, including Manyasi, did not attend court.

Although remand prisoners had been ferried from various prison facilities to court, they were kept in the cells the whole day waiting for their cases to be heard.

The following day, Justice Gicheru as chairman of the Judicial Service Commission, wrote a letter interdicting her and calling on her to show cause why she should not be disciplined.

Two letters

Manyasi responded through a letter dated March 16, 2005, in which she denied having participated in the strike or being absent from duty.

The two letters were placed before a Judicial Service Commission meeting on June 7 and they decided to retire her "in the public interest" in a letter dated June 8, 2005.

In a 13-page judgement, the court held that the procedure for retiring judicial officers was not followed and failure to do so "renders the decision-making process, and the decision itself, flawed".

Public interest

In this matter, the magistrate was neither served with a notice of intention to retire her in the public interest, nor with the substance of any report or part thereof that was detrimental to her.

They also held she was not given an opportunity to show cause why she should not be retired.

However, the court faulted the applicant for naming Gicheru, Njagi and the Attorney General.

Said the Judges: "In our view, whatever these officials did was done in the name of the Judicial Service Commission.

The Judges then quashed the decision of the commission to retire the applicant.

"In the circumstances, we find the said retirement was not only null and void, but improper. It cannot therefore lie", held the Judges.

They directed the Judicial Service Commission to halt the implementation of the decision and reinstate her in employment forthwith.

—The writer (nnyamboga@standardmedia.co.ke) is Standard Group Associate Editor —Legal