Kenya: Magistrate Wins Sh1.2 Million Pay After Sacking Over Drunkenness

19 November 2019

The High Court has ordered the Judicial Service Commission (JSC) to pay Sh1.2 million to a magistrate it sacked for showing up to work while drunk.

While awarding former Senior Principal Magistrate Simon Rotich Ruto the amount, Justice Byram Ongaya noted that the JSC did not follow the rule book while interdicting the magistrate.

Justice Ongaya also scrapped parts of the law that bar the commission from giving interdicted judicial officers office orders, minutes, reports or recorded reasons for decisions made on probes involving them.

The Sh1.2 million was the salary withheld during Mr Ruto's interdiction from September 2, 2016 to February 9, 2017.

Justice Ongaya held that the interdiction was irregularly so Mr Ruto should be paid accrued salaries and benefits.

BLUNDER

The judge refused to reinstate Mr Ruto but held that the JSC blundered by allowing Chief Registrar Anne Amadi to commence charges against him and interdict him, as the law allows only the Chief Justice to take such actions.

At the time of Mr Ruto's interdiction, Supreme Court Judge Mohammed Ibrahim was holding fort in the Office of the CJ as Dr Willy Mutunga had retired in June and the process of appointing his successor had not been completed.

"The court finds that it was not said that the Office of the Chief Justice was vacant and on the basis of the holding by Justice Radido, it is clear that the authority to interdict or suspend a judicial officer was at all times vested in the Chief Justice, to be exercised within the safeguards prescribed in the Third Schedule to the Judicial Service Act, 2011," Justice Ongaya said.

"To the extent that the interdiction was empty of the requisite authority and was ultra vires, null and void ab initio, the petitioner is awarded the withheld pay during the interdiction, and as prayed for, at Sh1,275,501."

WHAT HAPPENED

Mr Ruto was initially interdicted on January 17, 2015 for being habitually drunk while on duty.

While investigating him, the JSC found he had developed a serious disease as a result of overconsumption of alcohol, but opted to give him a second chance.

On July 8, 2015, the magistrate was allowed to resume duty but was transferred to another station after reading and signing a document outlining conditions for his reinstatement.

The document provided that Mr Ruto would be monitored for the first six months of his return to ensure his performance was above board.

Mr Ruto was also given a stern warning and before returning to work, he was taken for rehabilitation, a period during which he received his full pay.

The court papers are, however, unclear on who paid for the rehabilitation.

ADMISSION

But on September 2, 2016, Ms Amadi addressed a charge to Mr Ruto over showing up to work while drunk.

The magistrate was accused of committing the offence on August 25 and 26, 2016, forcing acting Chief Justice Ibrahim to assign his duties to other magistrates.

Mr Ruto denied the charges, and insisted he had performed his duties well.

At the JSC hearing, however, he said that on August 24, 2016, he finished working by lunch time and while out on a short break, he took four shots of Smirnoff vodka before returning to the chambers.

While in his chambers, an urgent case was assigned to him but he felt that he could not serve a member of the public because he was drunk.

Mr Ruto also told the JSC panel that his doctor found that rehabilitation alone would not cure his addiction and recommended a device called the naltrexone implant, saying it would yield better results. The device counters effects of drugs and kills the desire to drink.

LAWSUIT

Mr Ruto further told the JSC panel that he was willing to change and that he already had the device placed on his stomach and had not taken alcohol since. But the JSC resolved to sack him.

He then filed a suit seeking reinstatement, challenging part of section 23 of the Third Schedule in the JSC Act, that stops interdicted officers from being furnished with office orders, minutes, reports or recorded reasons for decisions made on probes involving them.

Mr Ruto also challenged his second interdiction, arguing that Ms Amadi has no legal authority to commence charges against judicial officers of his rank.

Justice Ongaya ruled that the JSC went above and beyond to help Mr Ruto and did no wrong in parting ways with him.

"The respondents have established that they embraced the best human resource practice towards work-life balance when they gave the petitioner a chance for rehabilitation and to resume work after the initial interdiction," the judge ruled.

"After lifting of that interdiction, the petitioner did not deny that he continued to have impaired performance resulting from continued alcoholic addiction."

The JSC was ordered to pay half of Mr Ruto's legal bills because the former magistrate's case partially succeeded.

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