Win for Judiciary finance boss as court stops new hiring
Justice Mathew Nduma who on March 10, 2022 declared that Ms Susan Oyatsi is deemed to have been lawfully appointed as Judiciary's Director Finance since May 2018 when her acting period expired.
The Employment and Labour Relations Court has quashed the decision of the Judiciary to hire a new head of finance instead of confirming the appointment of an official who has been holding the position in acting capacity for seven years.
The court also found that the official, Ms Susan Oyatsi, was being discriminated against, unlike her male colleagues who were appointed to act in their respective positions but were promptly officially confirmed, leaving her behind.
In the judgment delivered on Thursday by Justice Mathew Nduma in Nairobi, the court declared that Ms Oyatsi is deemed to have been lawfully appointed to the position of Director Finance of the Judiciary since May 2018 when her acting period expired.
Rights violated
The court also directed the Judicial Service Commission (JSC) to pay her Sh13.3 million, being salary underpayments from May 2, 2018 to date.
“A declaration is issued that JSC violated Ms Oyatsi’s rights under the Constitution. She is deemed to have been lawfully appointed to the position of Director Finance of the Judiciary upon expiry of 18 months from the date of appointment in acting capacity on December 2, 2016,” said Justice Nduma.
The court further ruled that the actions of the JSC to the official, such as interviewing her twice and failing to offer her the job substantively, degraded her human dignity by fact of being subjected to undignified work conditions as compared to her peers.
According to the court, the cumulative effects of the acts of commission and omission by the JSC towards Ms Oyatsi also had a false narrative being sent out impliedly that she was incompetent and not deserving of the position.
“She suffered and endured less remuneration [than] her counterparts which in itself is a humiliating and aggravating factor in this case,” said the judge.
“The failure by the JSC to timeously provide written reasons to the petitioner as to why she was not confirmed to the position of director and why she was deemed unsuccessful twice in 2015 and 2019 despite demand also violated Article 47(1) and (2) of the Constitution read with Section (6) of Fair Administrative Action Act,” said Justice Nduma.
The court also found that Ms Oyatsi was discriminated against, compared to her two male peers who acted for short periods of time and were timeously confirmed to their substantive positions.
The confirmation, according to Justice Nduma, ensured they were remunerated at the correct and higher salaries commensurate to the establishment of director cadre in the Judiciary, while Ms Oyatsi continued earning less.
The judge said there was compelling and credible evidence before court that JSC had within the period it has kept Ms Oyatsi in the capacity of acting finance director, confirmed to substantive positions her male colleagues who were horizontally of equal status as hers.
Acted for shorter periods
Justice Nduma said Ms Oyatsi’s two male colleagues, Mr Ronald Wanyama (Director Planning and Organisational Performance) and Mr Jeremiah Nthusi (Director of Audit and Risk Management) had acted for shorter periods than her.
“The two, upon confirmation, started earning the commensurate full salary of a director in the Judiciary pegged in job JSG1, while the petitioner, while undertaking the full role of a director, continued to earn less than half the remuneration for equivalent responsibility and duties,” said the judge.
He found that the omission by the JSC for an inordinate period of more than six years perpetrated a violation of Ms Oytasi’s right to fair labour practices and the right to fair remuneration.
Ms Oyatsi started holding the position of finance director in acting capacity from February 2015 during the tenure of former Chief Justice Willy Mutunga
She was reappointed in acting capacity by former Chief Justice David Maraga on December 2, 2016 to hold the position temporarily after JSC said the recruitment process was non-responsive since it failed to generate a suitable candidate.
JSC advertised the position again in 2019 and shortlisted several candidates but in June 2020, it concluded that the recruitment process was also non-responsive.
Re-advertised position
It re-advertised the said position for the third time in June 2021 and commenced the shortlisting process until the same was halted by orders restraining completion of the recruitment exercise.
Ms Oyatsi was among the candidates shortlisted and interviewed in the two previous recruitments but she was not provided written reasons as to why she was not confirmed to the position and why she was deemed unsuccessful twice in 2015 and 2019 despite demand.
Justice Nduma said denial of information violated Ms Oyatsi’s right under the Constitution and also subjected her for an inordinately long period to unreasonable working conditions.
“It is the court’s considered finding that the petitioner was entitled to receive reasons for non-appointment privately especially because she was already an officer in the establishment of the Judiciary with genuine concerns about the conditions of service she was being subjected to by the JSC,” he ruled.
The court also awarded her special damages and directed JSC to compute the same, furnish her with a copy and file in court for confirmation within 60 days.
