A magistrate who was dismissed by his employer for gross misconduct has been awarded Sh600,000 as compensation for unlawful termination.
Bildad Kamwele was dismissed by the Judicial Service Commission after being accused of releasing six suspects on bail who had been fined Sh200,000 or to serve 24 months pending appeal.
The court heard that he was employed by the Judiciary in October 2013 as a resident magistrate on permanent and pensionable terms, and was stationed at Wajir law courts.
At the time of his termination, he was serving in the same capacity at Narok law courts at a gross monthly salary of Sh150,250. Kamwele was served with a suspension letter dated April 18, 2016.
The second charge was for receiving a Sh50,000 bribe from a member of the public as bail for the release of her relative who had been charged with defilement.
He responded to the charges and the same was forwarded by the Chief Justice together with the charges, to the JSC.
It was resolved that Kamwele had a case to answer and should appear before JSC’s Human Resource Management and Administration Committee for an oral hearing.
Kamwele’s case was heard on January 30 and 31, 2017, and the report of the proceedings forwarded to the JSC indicating that grounds of misconduct had been established.
The JSC deliberated and found that the charge had been proved against him, leading to his dismissal. The decision was communicated to the petitioner in a letter dated February 9, 2017.
The findings in the charge of bribery and corruption was also proved and the decision communicated via a letter dated February 15.
He appealed against the decision. It was resolved, however, that the appeal did not raise any new facts to warrant a review.
Aggrieved by the termination, Kamwele moved to court seeking court’s declaration that the dismissal and the disciplinary proceedings were procedurally unfair and unlawful.
He also sought a declaration that the JSC breached his constitutional rights and freedoms and wanted to be compensated for the violation.
Kamwele sought compensation of Sh3.3 million for accrued back and arrears, salaries and allowances.
He said that on October 28, 2015, he received a bail application under a certificate of urgency in his capacity as the presiding magistrate, since the head of station was on leave preparing for his vetting and whose whereabouts were unknown.
He granted the accused persons bond upon presenting a Kenyan surety, having considered all the factors outlined in the Judiciary Bail and Bond Policy Guidelines.
Further, the accused persons raised compelling grounds that were unopposed by the prosecutor, he said.
Kamwele said he acted judicially and in good faith hence insulated by the Constitution and the Judicial Service Act, from any form of disciplinary action. However, he was suspended without pay and thereafter dismissed for handling the file.
He argued that he did not know who his accuser on the bribery charge was and was never given a chance to cross-examine anyone who testified on the matter.
In its defence, the JSC, through Chief Registrar Anne Amadi, said Kamwele was afforded a fair disciplinary process which adhered to the provisions of the law. It further contended that the claim for payment of salary and alimentary allowance was unsustainable as he was suspended and terminated on grounds of gross misconduct.
The JSC denied violating Kamwele’s rights and urged the court to dismiss the appeal with costs.
However, Employment and Labour Relations judge Maureen Onyango ruled that notwithstanding Kamwele’s alleged misconduct being grave and serious, the JSC had no basis for denying him his alimentary allowance.
She stated that Kamwele did not provide a basis for his tabulation. The tabulation did not refer to the justification for the figures relied upon by him and was, therefore, rejected.
He was directed to tabulate the alimentary allowance payable to him from the date of his suspension until the termination of his employment and file it in court within 30 days.
The judge further ruled that the claim for accrued salaries and arrears has no basis in law or in contract and was rejected.
“The petitioner is also awarded four months’ salary as compensation for unlawful and unfair termination,” she ruled.