Magistrate gets his job back after wrongful dismissal 12 years ago

Nairobi; Kenya: The Court of Appeal has reinstated a magistrate who was dismissed 12 years ago after erroneously acquitting a suspect.

Mr Stephen Pareno, a former magistrate in Machakos, got a reprieve when the Court of Appeal ruled he was wrongly dismissed by the Judicial Service Commission (JSC) in 2003.

The three-judge Bench, comprising Justices Erastus Githinji, Roselyne Nambuye and Agnes Murgor faulted a ruling by Justice Joseph Nyamu for delving into extraneous matters instead of considering the merits of the case during the judicial review application by the appellant.

“By his own words as displayed in the judgment, the learned judge had no business wandering off into areas of jurisprudential issues he had not been invited to decide on by either party, their plausibility notwithstanding,” ruled the judges.

Mr Pareno was said to have, on February 27, 2003, in a judgment he delivered, outlined the charges facing an accused person, then acquitted him believing that the acquittal applied to all the charges he was facing.

It was, however, not clear how Pareno realised he committed an error, but he moved swiftly through the senior principal magistrate to correct the mistake and the orders of outright acquittal of the suspect were substituted with 18 months probation. The Court of Appeal agreed with the appellant’s lawyer, Alphaxard Mogikoyo, that the procedure followed by JSC in dismissing the appellant from the service was flawed.

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“We reiterate that the JSC was and is still a public body and therefore amenable to the judicial review process. It had initiated a disciplinary process against the appellant with a view to terminating the appellant’s employment in its capacity a public body and the appellant as a public officer,” the judges stated.

The lawyer had told the court that the trial judge acknowledged that the procedure followed by JSC was flawed and instead of terminating the proceedings upon that finding, he went ahead to uphold JSC’s decision.

“The learned judge made a grave mistake and in the process denied justice to the appellant, a situation this court has been urged to reverse,” Mogikoyo argued.

Mr Pareno who was in 2003 based in Machakos Law Courts, and had been tasked to read a judgment on February in a criminal case on behalf of a colleague a Mr Soita who had proceeded on transfer to Kisii Law Courts.

Despite the error having been rectified and subsequent notification, it did not put the matter to rest.

Instead, Mr Pareno was on July 10, 2003 given a notice by the then High Court registrar William Ouko to show cause as to whether or not his conduct amounted to professional dishonesty, misconduct and dereliction of duty.

He was further required to show cause as to why disciplinary action should not be taken against him. On July 22, 2003 he wrote to the registrar explaining the circumstances that led to the error in the judgment but his explanation was rejected by the JSC.

He was dismissed from employment by the commission on August 9, 2003 on grounds of gross misconduct. Pareno moved to the High Court in September the same year to fight the dismissal.