A magistrate accused of receiving an offer of a Mercedes Benz vehicle, shoes and golden rings as an inducement to rule in favour of parties will have to face a disciplinary committee.
Chief Magistrate Joyce Manyasi will remain on suspension as she fights to clear her name over other allegations among them, operating two hotels in Malindi, one which was the subject of a case before her. She is expected to face the Judicial Service Commission’s (JSC) disciplinary committee after Court of Appeal thwarted efforts to lift her suspension and stop disciplinary proceedings over complaints made against her.
A three-judge bench -Justice Philip Waki, Roselyne Nambuye and Kathurima M’inoti – said suspension of a judicial officer or judge who is subject to removal or disciplinary proceedings is informed by public interest to ensure that he/she does not discharge duty until the proceedings are concluded.
“The rationale for that arrangement is the high integrity that is demanded of a judicial officer, which would be gravely compromised if an officer against whom the proceedings have been initiated for alleged lack of integrity, continues to discharge duties of the office in a “business as usual” manner,” the judgment read in part.
The appellate judges said a Judicial Review application filed by Manyasi and dismissed by High Court judge Weldon Korir did not bar JSC from commencing disciplinary proceedings against her. The Chief Magistrate was first retired by JSC that was then chaired by Chief Justice Evan Gicheru, in public interest when serving in Machakos Law Courts.
This was after she allegedly participated in a magistrates’ strike that paralysed operations in most courts in the country on March 14, 2005.
She moved to the High Court and obtained orders quashing the CJ’s decision on grounds that the commission did not comply with its regulations in retiring her.
The commission reportedly did not give her specific complaints, report detrimental to her and an opportunity to show cause why she should not be retired in public interest. The decision to reinstate her was made by High Court judges Jean Gacheche and Leonard Njagi in the case she was represented by lawyer Mohammed Nyaoga. She was reinstated by JSC in a letter dated July 11, 2011 and posted to Milimani Law Courts as a deputy registrar, a position she did not serve for a month. Then CJ Willy Mutunga wrote to her on July 25, 2011 that disciplinary action was contemplated against her, and suspended her from duty. He indicated the complaints against her in the letter.
“The above charges constitute a breach of conduct for a judicial officer and cannot be condoned in a modern Judiciary. Severe disciplinary action which might include dismissal with a loss of all benefits is now contemplated against you, but before this is done, you are asked to show cause why the intended action should not be taken against you,” Dr Mutunga’s letter read in part. The CJ is said to have advised her to treat the allegations as charges she was to face in the disciplinary proceedings and she was not to draw any salary during the suspension period.
On October 18, 2011, JSC advised her that she was to be paid an alimentary allowance pending the determination of the disciplinary case.
Aggrieved by Mutunga’s letter, she moved to the High Court under Judicial Review to quash the suspension and also sought for prohibition order stopping the disciplinary action. She sought orders to compel JSC to reinstate her as a Chief Magistrate.
She argued that the CJ can only suspend a judicial officer who has been convicted of a serious offence or against whom proceedings of dismissal have been taken, which she said was not the case. JSC took issue with her joining Mutunga in the application, saying he in his capacity as the chairperson of the commission and in exercise of delegated powers.
The commission pointed out that when the court quashed her retirement that was in public interest, it did not stop JSC from continuing with the disciplinary process.
High Court judge Weldon Korir dismissed the application, saying JSC did not act in bad faith because disciplinary proceedings against her had been commenced by the time she was suspended.
Aggrieved by Justice Korir’s decision, she moved to Court of Appeal on grounds that the judge erred by holding that her suspension was within the provisions of JSC Act and failed to find that her suspension was in bad faith.
The appellate judges heard that some complaints against her were unsigned, by anonymous persons, and others relating to the magistrates’ strike which had been determined in the first Judicial Review application that quashed her retirement.