The Court of Appeal has dismissed an appeal by the former Chief Justice, David Maraga, to suspend Kiambu Principal Magistrate, Bryan Khaemba.

A three-judge bench on Friday, December 17, overturned the directive by the former CJ and the Judicial Service Commission (JSC) and further ordered the reinstatement of Justice Khaemba.

Khaemba was reinstatement with full benefits. He had been suspended by the retired Chief Justice on June 19, 2019, following allegations of gross misconduct.

Justices Asike Makhandia, Sankale Ole Kantai and Pauline Nyamweya heard that the Magistrate was suspended after it emerged he had granted former Kiambu Governor, Ferdinand Waititu, an anticipatory bail in his Ksh588 million graft case.

Justice Byrum Ongaya in court (Undated)

Justice Byrum Ongaya in court (Undated)COURTESY

“This Court finds that the impugned disciplinary process, having been irregular and illegal ab initio, meant there were no valid proceedings that could be remitted back to the Appellants for consideration,” the COA bench ruled.

Khaemba was punished by Maraga for giving Waititu bail while on sick leave. 

The Magistrate had given orders on May 23, 2019, to the Director of Public Prosecutions not to arrest and charge Waititu.

The Kiambu Principal Magistrate had previously been transferred to the Thika Law Courts, but Maraga cancelled the shift and ordered him to hand over all government property that was in his possession.

“While on suspension, you shall receive nil salary. Your transfer to Thika Law Courts is hereby cancelled. You are therefore required to report to the Chief Magistrate, Kiambu Law Courts, every Friday.

“You were required to explain why in the morning of May 23, whereas you had reported to be unwell and allowed to be away from duty, thus necessitating the adjournment of all matters listed before you on that day, you went to court and handled only one matter that had not been allocated to or listed before you,” the CJ stated at the time.

Hours after Maraga suspended him, Khaemba resigned, citing various reasons among them the need to engage in other income-generating activities.

EACC had accused Waititu of involvement in the irregular award of tenders valued at Ksh588 million, fraudulent acquisition of public funds, conflict of interest and money laundering.


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