Image: JACK OWUOR
Decisions made by the Ombudsman are binding on public institutions, the Court of Appeal has declared.
Judges Roselyn Nambuye, Patrick Kiage and Agnes Murgor on Wednesday held that decisions and recommendations made by the Commission on Administrative Justice have the force of law and are therefore binding.
"Article 254 relates to the exercise of mandate by the appellant (Ombudsman) for the year in respect of which the report is being made. It is our view that these fall into what has come to be known as accountability reports required of public entities in the discharge of their constitutional and statutory mandates as provided for in both regimes of the law," the judges said in their ruling.
"We, therefore, find nothing to suggest that the only remedy available to a beneficiary of the appellant's recommendations for redress by a public entity in the discharge of its undoubted public investigative and oversight mandate is limited to reporting of such findings to the National Assembly."
“…..Neither do we find anything in the said Article to suggest that such recommendations have no force of law and are therefore not amenable to enforcement by a court of law,” the bench ruled.
The commission is mandated to investigation and secure redress for complaints of unfair treatment by public institutions.
Their judgment follows an appeal by the commission contesting a decision by High Court judge Weldon Korir that was given in February 2015.
According to court documents, a complaint was filed by Judah Abekah on August 21, 2012 saying his rights to fair administrative action were violated.
Abekah was employed as a director at Vision 2030 for a period of three years. The contract had a provision for one to apply for an extension of contract six months to its expiry.
However when the three-year contract lapsed, he unsuccessfully applied for a renewal.
He appealed to the minister for planning and a year renewal was granted. The court was told that then Vision 2030 boss, Mugo Kibati, refused to forward the letter to Abekah insisting that he should hand over and leave.
Abekah filed a complaint with the Ombudsman. The commission rendered a decision in his favour, saying that he should be paid an equivalent of one year’s salary and allowances as compensation.
The Ombudsman also directed that he be allowed to remove his personal belongings from office. The board was also told to offer an unconditional apology to the man for mistreatment.
The board failed to implement the Ombudsman's directives, prompting Abekah to move to court.
Justice Korir dismissed the case on the basis that the determination of the commission could not be enforced through a judicial review and that the Vision 2030 board was not under obligation to implement the determination of the commission.
Abekah appealed that decision.
The Court of Appeal issued mandamus orders to compel the board to implement the directive of the commission.
In addition, the court awarded Abekah Sh700,000 as compensation for infringement of his right to fair administrative action with accrued interest from the date of the High Court judgment on February 26, 2015.
edited by peter obuya