A Siaya magistrate who was sacked over alleged robbery has suffered a major setback after the Employment and Labour Relations Court dismissed his attempt to return to the Judiciary.
Jared Sani Nyangena was dismissed from the judicial service in February 2017 by the Judicial Service Commission (JSC) for allegations of being involved in criminal activities including robbery with violence where he allegedly stole Ksh10,000 and a mobile phone worth Ksh5,000 from a traveller.
He had been accused of violently robbing Samson Owino Ogeda of Ksh10,000 and a Nokia mobile phone worth Ksh5,000. According to the criminal activities brought to the limelight by DCI detectives, the magistrate was alleged to have committed the offence on the night of December 20, 2014, together with others.
He was, however, acquitted by the court. But the JSC who instituted investigations against the conduct of the magistrate found that notwithstanding the acquittal in the criminal case, he had through his conduct failed to uphold himself to the highest standard of integrity, decorum, and professional ethics expected of a public servant and in particular a judicial officer.
In its decision which Nyangena contested in court, the JSC’s Human Resource Management & Administration Committee found the conduct of the magistrate, who was stationed at Siaya Law Courts, amounted to gross misconduct warranting punishment.
The commission found that despite the acquittal in the criminal case, Nyangena’s conduct on the night in question did not meet the expectations envisaged by the Judicial Service Act.
At the disciplinary hearing, Nyangena faced a second charge of absentee himself from duty among others on the night of December 21, 2014, including ferrying fare-paying passengers, which conduct prejudiced his status as a member of the judicial service and brought the judicial service into disrepute.
"This was in total disregard of the standard set by the Judicial Service Code of Ethics," the charge indicated. However, the Commission found the second charge was not supported by evidence.
JSC notified him of the decision for dismissal from the judicial service on February 9, 2017, and his appeal against the decision was disallowed.
Prior to the dismissal, he had been interdicted on February 13, 2015, by retired Chief Justice Willy Mutunga over the alleged involvement in criminal activities.
Nyangena was appointed and posted to Ukwala Law Courts as a District Magistrate in September 2010 by the JSC and was transferred to Siaya Law courts in 2011.
Aggrieved by the dismissal decision, he sued the JSC on January 30, 2019, alleging unfair termination of employment, breach of contract and violation of the rights to fair administrative action and labour practices.
The former magistrate wanted the Labour Court to quash JSC’s decision to dismiss him from the judicial service claiming that he was not accorded a fair hearing before the final decision was made.
On claims that he was denied a fair hearing, Nyangena stated that the charges were incomplete. He said the details of the charges were incomplete since they did not specify the sections of the law he had violated or created the charge/offence.
Judge Stephen Radido said the charge was not incomplete or defective since the specific date of the alleged involvement in criminal activities as indicated in the charge.
The conduct was also mentioned, and the subjects of the conduct were enumerated in the particulars of the charge.
“The claimant did not object to the framing of the charges in his written response to the Commission. He did not challenge the inadequacy or incompleteness of the charges before the Disciplinary Panel. He did not ask for more time. He has not proved any prejudice before this court,” Justice Radido ruled.
The judge also noted that a disciplinary hearing or process should not be turned into a mini-court or criminal trial. The court held that employers are not skilled legal practitioners or draftsmen to warrant a requirement for such a technicality.
In his court proceedings, Nyangena had also challenged procedural fairness on the ground that he was not served or notified of the additional charge upon which he was found guilty by the JSC.
He further contended that he was not allowed to respond to the additional charge, which indicated that his conduct on the night of December 20, 2014, did not uphold to the highest standard of integrity, etiquette and professional ethics expected of a judicial officer.
The judge, however, said the long narration in the dismissal letter was not an additional charge.
“It was an exegesis of the finding of misconduct based on the events of December 20, 2014. It was the reasoning behind the finding,” Justice Radido stated.
The Judge also concluded that although the Commission failed to prove that it complied with the requirement to give Nyangena 14-day's notice of the oral hearing, he did not demonstrate any procedural prejudice suffered due to the failure.
Nyangena had claimed that he was not given adequate notice to appear for the oral hearing as contemplated by paragraph 25(4) of the Third Schedule of the Judicial Service Act.
The paragraph requires the Disciplinary Tribunal to give the judicial officer at least 14 days’ notice of the physical hearing.