A senior finance official at the Judiciary yesterday opposed her employer’s request for the suspension of a decision directing her immediate confirmation, to the position she has been holding in an acting capacity for more than seven years.
Ms Susan Oyatsi told a bench of three Court of Appeal judges that the suspension of the judgement issued by the Employment and Labour Relations Court in March would continue infringing on her rights against fair labour practices.
She said through Senior Counsel Fred Ngatia that it was unfair to continue keeping her in an acting capacity for more than seven years and paying her “a pittance yet she is offering the services of a substantive office holder’ is illegal.
Ms Oyasti won the battle to be confirmed to the position in March after Justice Nduma Nderi ruled that inordinate delay in confirming her to the position, not only perpetrated violation of her right to fair labour practices and the right to fair remuneration but also violated her right to equal protection and equal benefits of the law.
The Employment and Labour court judge also directed the Judicial Service Commission (JSC) to pay her Sh13.6 million, after finding that she was underpaid from May 2018.
“In the event that the JSC succeeds in the appeal, it is easier to reverse what has happened because she will only go back to her former position,” Mr Ngatia submitted.
Fair and transparent recruitment
The JSC through Charles Kanjama told Justices Asike Makhandia, Fatuma Sichale and Hellen Omondi that the decision of the Employment court effectively appointed Ms Oyatsi to the position of the finance director without subjecting her to competitive, fair and transparent recruitment.
“The appeal will also be rendered nugatory if the order of stay is not granted for the reasons that the applicant (JSC) shall be forced to pay approximately Sh13.6 million to the respondent while there is a pending arguable appeal,” Mr Kanjama said.
The court will rule on the application on November 4.
Ms Oyatsi moved to court last year after the JSC advertised the position for the second time yet she has been performing the duties of the director of finance, for more than seven years.
The official joined the Judiciary in June 2013 as the regional assistant director in charge of Nairobi. She later took over as the director in an acting capacity in February 2015.
The Directorate of Finance position, which had two directors, has not had a substantive office holder since November 2013.
No successful candidate
She was first interviewed for the job in 2016 but the JSC said there was no successful candidate. She later took over from another person in an acting capacity for another five years.
During her stint, Mr Ngatia said she performed her job exceptionally earning a recommendation from former Chief Justice David Maraga.
She said has been instrumental in preparing the Judiciary and JSC budgets and has appeared before the National Assembly together with Chief Registrar of Judiciary Ms Anne Amadi.
Ms Oyatsi did a second interview but Ms Amadi wrote to her on September 28, 2019 informing her that she was not successful. No reasons or disclosure of scores were made.
She told the court that she received an annual overall allowance of Sh23,000 instead of that attributable to the substantive post of director of Sh30,000.
“It is the court’s considered finding that the omission by the respondent for an inordinate period of more than six years perpetrated violation of the petitioners right to fair Labour practices and the right to fair remuneration,” Justice nNeri ruled as he blocked the JSC from recruiting another person to the position.