Magistrate charged with murder gets back her job
| Aug 17th 2020 | 3 min read
Chief Justice David Maraga broke the law by suspending a magistrate charged with the murder of her husband, a Labour court has ruled.
In a decision that reinstates Pauline Maisy Omung’ala as Nyeri Resident Magistrate, Labour Court judge Byrum Ongaya faulted the CJ for suspending her without pay after her arrest in connection with the murder.
Omung’ala was charged with the murder of her husband, lawyer Robert Chesang, at their home in Lukenya, Machakos County on February 17, 2019.
She was charged alongside Richard Lorunyei Moru, Laurence Lempesi and Peter Muendo Mbithi.
Justice Maraga wrote on April 4, 2019, requiring her to respond to why she should not be kicked out from the Judiciary over gross misconduct within 14 days. In the meantime, he asked her to proceed on suspension while waiting for the disciplinary process to be concluded.
“While on suspension, you shall not receive your monthly salary. Kindly arrange to handover all government stores in your custody with a detailed report to the Chief Magistrate, Nyeri Law Courts and copy to the Chief Registrar of Judiciary. You will also be required to report to the Head of Station, Nyeri, every Friday,” Maraga directed.
In her case, Omung’ala lamented the CJ had condemned her without giving her a chance to be heard. She complained Maraga had adjudged her as guilty of murder, which is against her right to be assumed innocent until proven guilty.
While agreeing with the magistrate, Justice Ongaya said her employer ought to have interdicted her until the murder case is settled, and if convicted, then the verdict would form part of the dismissal charge.
“The order of certiorari is hereby issued to bring to the Honourable Court for purposes of quashing the decision of the first respondent (Chief Justice) as contained in the letters dated April 16, 2019, and July 27, 2019.”
“In the alternative to an order of certiorari above, the order of prohibition or injunction is hereby issued to prohibit and permanently restrain the respondents from implementing the decision contained in the first respondent’s letters,” ruled Justice Ongaya.
Maisy opened up about her husband’s murder in the Labour court. She says the reason she was charged was out of home differences with him, which ended up in an assault case against the deceased.
“The reason she was charged with the offense of murder of her husband is because of domestic problems the petitioner and her husband had. This had culminated in a case in which her husband had been charged with assaulting the petitioner,” Odero Osiemo & Company Advocates told the court.
At the time Chesang was killed, the magistrate claimed she was working in Nyeri and was with their children. She believes Chesang was accosted by thugs and shot dead in their house at Moke Gardens, Lukenya.
Judiciary Registrar Ann Amadi opposed the case, arguing the CJ has powers to interdict or suspend any officer when preliminary investigations disclose a criminal offense may have been committed.
Justice Ongaya said the magistrate may be interdicted and paid half basic salary.
“Accordingly, a declaration will issue there was no offense committed by the petitioner warranting disciplinary action and once the murder trial is concluded, the respondents may lift the petitioner’s interdiction as may have been or will be imposed or determine the fate of the petitioner’s employment,” he ruled.
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