Supreme Court now deals blow to Ombudsman Office

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Economy

Supreme Court now deals blow to Ombudsman Office


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The Supreme Court building. FILE PHOTO | NMG

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Summary

  • Popularly known as the Ombudsman, it is a constitutional commission established under Article 59(4) of the Constitution, and the Commission on Administrative Justice Act, 2011.
  • It is mandated to check bad administration in both national and county governments.
  • It is entitled to, among other things, investigate complaints of delay, abuse of power, unfair treatment, manifest injustice or discourtesy.

Recommendations of the Commission on Administrative Justice (CAJ) are not binding to public bodies and government entities, the Supreme Court has ruled, dealing a blow to the entity mandated to check bad administration in the public sector.

Popularly known as the Ombudsman, it is a constitutional commission established under Article 59(4) of the Constitution, and the Commission on Administrative Justice Act, 2011.

It is mandated to check bad administration in both national and county governments. It is entitled to, among other things, investigate complaints of delay, abuse of power, unfair treatment, manifest injustice or discourtesy.

A bench of five judges of the Supreme Court led by acting Chief Justice Philomena Mwilu said the recommendations of the CAJ can only be binding where specifically provided for.

The judges added that the CAJ also lacks the powers to award compensation. “In other words, even if CAJ recommends compensation after concluding its inquiry, there is an additional step or action to be taken by the entity or person to whom the recommendation has been made,” the top court said.

In the dispute, Judah Abekah sued Kenya Vision 2030 Board after it failed to renew his contract. Mr Abekah secured a three-year contract with the Board in 2009 and in the contract would be renewed six months to expiry, but subject to approval by the Board.

Six months to the expiry of his contract, he wrote to the Board requesting a renewal but his request was rejected on the grounds of performance.

Mr Abekah appealed to the Minister for Planning and the minister renewed his contract for a period of one year, but the Board declined to allow him back to work.

He then sought the intervention of CAJ and after investigating the matter, the commission directed the Board to pay Mr Abekah an equivalent of twelve months salary and allowances in compensation for the one year. The Commission further directed the board to allow him access the office to pick his personal effects and offer him an unconditional apology for the treatment meted out to him. The Board declined to implement CAJ’s recommendation and filed a case before the High court.

Justice Weldon Korir later found that although CAJ had the powers to investigate the claim, but it could not compel the manner in which such recommendations could be implemented. The CAJ filed an appeal and three judges in September 2019 declared that Mr Abekah’s right to fair administrative action was infringed and awarded him Sh700,000 as compensation.

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