PHOTO | BILLY MUTAI From left, lawyers Paul Muite for JSC, Donald Kipkorir for Mrs Gladys Shollei and Kioko Kilukumi for Justice Mohammed Warsame, at Nairobi’s Milimani Courts on August 27, 2013. Mrs Shollei has filed a case in court challenging the JSC’s decision to send her on compulsory leave. NATION MEDIA GROUP
The Judicial Service Commission has opted for negotiations to settle the dispute with its embattled chief registrar Gladys Shollei out of court.
This came as the JSC said it snubbed summons from a parliamentary committee to safeguard its independence as provided for in the Constitution.
The commission through its lawyer Paul Muite told the court that they had opened negotiations to explore options of having the matter which has exposed sharp divisions within Judiciary’s top decision making organ, resolved through negotiations.
“The JSC has opened discussions to explore the possibility of having the dispute resolved through negotiations and are requesting more time to allow all the parties to conclude the talks,” said Mr Muite.
Mr Justice David Majanja allowed the request and granted the commission three days to continue with the talks and extended orders barring JSC from instituting investigations against Mrs Shollei over allegations of malpractices in procurement.
At the same time, the commission wants a suit by Mrs Shollei challenging the decision to send her on compulsory leave struck out on grounds that it is speculative and does not meet the threshold of suing the JSC as stipulated in the Constitution.
JSC’s registrar Winfrida Mokaya swore an affidavit in response to the suit stating that what Mrs Shollei alleged in her petition was totally unfounded since it was a direct violation of Article 165 of the Constitution.
“The petition is precipitate since the JSC has not commenced any disciplinary proceedings against her so as to invoke provisions of the JSC Act which allow her to contest in court. The commission is still at the inquiry and investigations stage which may or may not lead to disciplinary action,” swore Ms Mokaya.
Chief magistrate Mary Ominde, a commissioner in the JSC who Mrs Shollei claimed was behind her woes, also wants her name removed from the petition as a respondent.
Ms Ominde swore that Mrs Shollei’s allegations against her were a ploy to divide the JSC since she cannot understand why she is claiming she refused to support her.
“Mrs Shollei alleges that I have never supported her from day one and that I have been using my position to intimidate and give her orders. It was very surprising to hear for the first that I told her to her face that she will pay for refusing to meet my demands,” she said.
Ms Mokaya defended JSC’s move to send Mrs Shollei on compulsory leave to facilitate an inquiry into her conduct, saying the decision is an established human resource and employment practice.
PETITION IS PREMATURE
According to the registrar, Mrs Shollei’s petition is premature and her reference to disciplinary actions against her conduct was incorrect since it would only be at the end of the inquiry that the commission would decide what action to take.
“The commission has the constitutional mandate to appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, including the Chief Registrar of the Judiciary. It has adhered to and will be guided by the Constitution and the JSC Act in its resolution,” said Ms Mokaya.
She denied claims by Mrs Shollei that the commission had violated her rights, stating that the intended process to investigate her conduct would be fair, just and expeditious.
“The Chief Registrar has the constitutional right of presumption of innocence and will be given a fair hearing at the inquiry stage so that the veracity of the allegations against her are established,” she said.
She defended the JSC retreat in Mombasa, which led to the recommendation to suspend Mrs Shollei, saying that it was a scheduled meeting to discuss corporate governance in the Judiciary and that all members were invited including Mrs Shollei and Chief Justice Willy Mutunga.
Mrs Shollei had alleged that she was not party to the retreat in Mombasa and only became aware of their resolution through the press.
The JSC last week sent her on a two weeks compulsory leave and instructed two committees — one chaired by lawyer Ahmednasir Abdullahi (Finance and Administration) and Justice Isaac Lenaola (Human Resource Management) — to investigate allegations of impropriety levelled against her.
She, however, filed an urgent petition and obtained temporary orders stopping the investigation until her claims of bias and violations of her rights are heard and determined.
Ms Shollei took her case before the Parliamentary Committee on Administration of Justice and Constitutional Affairs, which decided to summon JSC to explain their decision. The JSC, however, declined to obey the summons by MPs.
On Tuesday, the commission, in a letter to Parliament signed by Ms Mokaya, stated that the commission’s decision to send Mrs Shollei on forced leave could not be questioned by Parliament.
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