Former Kericho resident magistrate Judith Akinyi Nyagol.
A former Kericho magistrate who was hounded out of office on allegations of corruption has been awarded Sh5 million compensation on grounds that she was subjected to double jeopardy.
When all hope appeared lost for the former resident magistrate Judith Akinyi Nyagol, the Supreme Court intervened and reinstated the compensation, initially awarded by the Employment and Labour Relations Court (ELRC) but rejected by the Court of Appeal.
The apex court affirmed the ELRC’s decision and agreed with Ms Nyagol that she was subjected to double jeopardy when the Judicial Service Commission (JSC) dismissed her while relying on the same allegations she faced in a criminal court that acquitted her.
Other than the Sh5 million compensation, the Supreme Court — presided by Justice Mohammed Ibrahim — ordered the JSC to pay Ms Nyagol her withheld salary from the time of her interdiction on September 4, 2015, to the point of her dismissal on August 21, 2018.
“On the whole, the charges of August 22, 2017, read against the facts of the case constitute the same issue as the subject of the criminal charges. Therefore, we agree with Ms Nyakol that the JSC contravened the principle of double jeopardy,” said Justices Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.
Arrested at work
Evidence tabled in court showed that Ms Nyagol, who joined the judiciary in June 2012, was arrested at her work station in Kericho on August 20, 2015, by officers from the Ethics and Anti-Corruption Commission (EACC). She was subsequently charged with corruptly soliciting a bribe contrary to Section 39(3) of the anti-corruption and economic crimes.
Ms Nyagol was alleged to have solicited Sh20,000 from Mr Wilson Yegon on July 27, 2015, to secure a favourable ruling for him. He was accused of operating a bar at Brooke Trading Centre in Kericho Town without a licence.
The trial court was told that Sh10,000 was allegedly delivered to the magistrate by her court clerk, Mr Robert Cheruiyot.
Kericho Law Court clerk Robert Cheruiyot.
Ms Nyagol was later acquitted after the trial court found that the money recovered from her purse was not planted there by EACC officers as evidence before they subsequently conducted a search. In any case, the court noted, Mr Yegon was eventually convicted.
The JSC later brought disciplinary proceedings against the magistrate for alleged breach of the judicial code of conduct and ethics by allegedly allowing Mr Cheruiyot to convey to Mr Yegon that she was in a position to influence the ruling.
The Commission deemed her conduct as improper and accused her of exhibiting lack of propriety. She was eventually sacked despite her attempts to show that Mr Yego was eventually found guilty and sentenced.
Aggrieved, she filed a petition before the ELRC in Nakuru in November 2020, arguing that the disciplinary process leading to termination of her employment violated her right to a fair trial. She further contended that the proceedings violated the principle of double jeopardy since the charge before the JSC was strikingly similar to the charge from which she had been acquitted.
ELRC judge Hellen Wasilwa ordered the JSC to pay her Sh5 million as compensation, but the Commission challenged the decision and a bench of three judges of the Court of Appeal overturned the judgment.
Moved to Supreme Court
Undeterred, Ms Nyagol moved to the Supreme Court seeking reinstatement and compensation.
Supreme Court judges found that the disciplinary hearing was based on charges dated August 2017, but that the appellant was subsequently dismissed based on charges dated September 2015.
The judges further observed that the letter communicating the charges dated August 2017 spoke to ‘fresh charges’ but did not specifically speak to the fate of the charges of September 2015.
“Therefore, the appellant was left in limbo, not knowing which exact set of charges she was facing,” said the judges.
