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Is the nose pincher entitled to all her financial dues?
Intelligentsia
#1 Posted : Friday, October 19, 2012 6:08:25 PM
Rank: Elder


Joined: 10/1/2009
Posts: 2,436
There's a big argument ongoing on this, sparked by one legal expert, Patrick Kahonge, interviewed by Capital FM.

Will she be compensated for the 15 years or so remaining to her retirement?

She was after all a senior judicial officer with security of tenure.

Assume she was getting KShs 1m per month, 15yrs would mean kindu KShs 180m Pray Sorry excuse me as I go to throw up at this point...


http://www.capitalfm.co....a-to-all-financial-dues/
maka
#2 Posted : Friday, October 19, 2012 10:07:28 PM
Rank: Elder


Joined: 4/22/2010
Posts: 11,522
Location: Nairobi
Baraza since her suspension has been receiving half her salary meaning she has earned approximately 3.8 million.When a judicial officer with security of tenure such as Baraza resigns that officer is entitled to an amount equivalent to the balance of the sum that would have accrued during the tenure,Baraza was to retire by effluxion of time at the age of 70.She is now 55 so that means she had 15 more years till she attained the constitutional age of 70.At an average pay of 1million every month,her take home would have been at least 180 million over 15 years.If you add cumulative benefits we are talking of about 200 million which she is entitled to receive at a go.There is legal support for this see:Navichandra Shah vs Premier Academy.The JSC act can be interpreted differently.They,ll have to reach a compromise at some point in time.
possunt quia posse videntur
mawinder
#3 Posted : Friday, October 19, 2012 10:24:01 PM
Rank: Elder


Joined: 4/30/2008
Posts: 6,029
She will be the biggest beneficiary of the kerubo saga and may out of generosity give kerubo 500k
For Sport
#4 Posted : Friday, October 19, 2012 10:27:08 PM
Rank: Veteran


Joined: 12/23/2010
Posts: 1,229
If this is true it would have been cheaper to live with her. The next C
Deputy CJ will also be drawing a salary. Pretty expensive.
githundi
#5 Posted : Friday, October 19, 2012 10:56:06 PM
Rank: Veteran


Joined: 11/19/2010
Posts: 1,308
Location: nairobi metropolitan
For Sport wrote:
If this is true it would have been cheaper to live with her. The next C
Deputy CJ will also be drawing a salary. Pretty expensive.

Democracy does not belong to the dead
Elder
#6 Posted : Saturday, October 20, 2012 8:59:22 AM
Rank: Elder


Joined: 9/7/2010
Posts: 2,148
Location: elderville
The tribunal investigating her conduct recommended her removal. The only thing that stopped the president from removing her was the stay when she was appealing the same which she has since withdrawn. In my view she had no capacity to resign.
And I don't understand this argument that when a constitutional office holder with a security of tenure resigns she/he is entitled to salary for the whole term. Sounds like conventional wisdom.
Security of tenure protects ones removal from employment by third parties before the expiry of the tenure. It does not protect a removal by own self so to say. Thus when one resigns I am yet to see a good argument for giving her/him salary for the unserved term - in fact if the resignation is without notice a case could be made for payment by the employee for the noice period.
He who can express in words the ardour of his love, has but little love to express. - Petrach, Son. (That men by various ways arrive at the same end. - Montaigne, The Essays of.)
mkeiyd
#7 Posted : Saturday, October 20, 2012 9:43:49 AM
Rank: Veteran


Joined: 3/26/2012
Posts: 1,182
Elder wrote:
The tribunal investigating her conduct recommended her removal. The only thing that stopped the president from removing her was the stay when she was appealing the same which she has since withdrawn. In my view she had no capacity to resign.
And I don't understand this argument that when a constitutional office holder with a security of tenure resigns she/he is entitled to salary for the whole term. Sounds like conventional wisdom.
Security of tenure protects ones removal from employment by third parties before the expiry of the tenure. It does not protect a removal by own self so to say. Thus when one resigns I am yet to see a good argument for giving her/him salary for the unserved term - in fact if the resignation is without notice a case could be made for payment by the employee for the noice period.



Now that's wisdom. My understanding of security of tenure is that you are protected. On baraza's case, she withdrew her appeal, of proceedings that were going to remove her from the bench anyway.
She should get nothing.
What's the point of paying somebody who's resigning?
What are we compensating her for?
She resigned without notice, she forfeits the half pay she was getting.
Impunity
#8 Posted : Saturday, October 20, 2012 11:12:55 AM
Rank: Elder


Joined: 3/2/2009
Posts: 26,330
Location: Masada
mkeiyd wrote:
Elder wrote:
The tribunal investigating her conduct recommended her removal. The only thing that stopped the president from removing her was the stay when she was appealing the same which she has since withdrawn. In my view she had no capacity to resign.
And I don't understand this argument that when a constitutional office holder with a security of tenure resigns she/he is entitled to salary for the whole term. Sounds like conventional wisdom.
Security of tenure protects ones removal from employment by third parties before the expiry of the tenure. It does not protect a removal by own self so to say. Thus when one resigns I am yet to see a good argument for giving her/him salary for the unserved term - in fact if the resignation is without notice a case could be made for payment by the employee for the noice period.



Now that's wisdom. My understanding of security of tenure is that you are protected. On baraza's case, she withdrew her appeal, of proceedings that were going to remove her from the bench anyway.
She should get nothing.
What's the point of paying somebody who's resigning?
What are we compensating her for?
She resigned without notice, she forfeits the half pay she was getting.


She should not be paid even a south sudanese dime!
Portfolio: Sold
You know you've made it when you get a parking space for your yatcht.

Jus Blazin
#9 Posted : Saturday, October 20, 2012 1:25:01 PM
Rank: Elder


Joined: 10/23/2008
Posts: 3,966
Elder wrote:
The tribunal investigating her conduct recommended her removal. The only thing that stopped the president from removing her was the stay when she was appealing the same which she has since withdrawn. In my view she had no capacity to resign.
And I don't understand this argument that when a constitutional office holder with a security of tenure resigns she/he is entitled to salary for the whole term. Sounds like conventional wisdom.
Security of tenure protects ones removal from employment by third parties before the expiry of the tenure. It does not protect a removal by own self so to say. Thus when one resigns I am yet to see a good argument for giving her/him salary for the unserved term - in fact if the resignation is without notice a case could be made for payment by the employee for the noice period.

True, otherwise every other constitutional holder would have resigned by now if the argument held water. Unafanya kazi miezi mbili, you resign and wait for the proceeds. It doesn't work, and it wouldn't work. You resign by your own accord.
Luck is when Preparation meets Opportunity. ~ Lucius Annaeus Seneca
maka
#10 Posted : Saturday, October 20, 2012 2:43:00 PM
Rank: Elder


Joined: 4/22/2010
Posts: 11,522
Location: Nairobi
There is a difference between a protected Constitutional office and a normal contract of employment. Firstly examples abound of judges and constitutional office holders who were paid for the remainder of their term. Justice Ringera is one PLO is another the judges sent packing after the radical surgery are another lot. It is fallacious to suggest that since she resigned during the pendency of the appeal and within the statutory 14 day leave period she will not be entitled to her dues. The JSC Act 2011 is clear she still retained her post as Deputy CJ the President did not get the chance to terminate her, she resigned of her own volition and thus as per the Constitution her terms cannot be varied to her disadvantage
possunt quia posse videntur
Rahatupu
#11 Posted : Monday, October 22, 2012 11:46:37 AM
Rank: Veteran


Joined: 12/4/2009
Posts: 1,982
Location: matano manne
maka wrote:
There is a difference between a protected Constitutional office and a normal contract of employment. Firstly examples abound of judges and constitutional office holders who were paid for the remainder of their term. Justice Ringera is one PLO is another the judges sent packing after the radical surgery are another lot. It is fallacious to suggest that since she resigned during the pendency of the appeal and within the statutory 14 day leave period she will not be entitled to her dues. The JSC Act 2011 is clear she still retained her post as Deputy CJ the President did not get the chance to terminate her, she resigned of her own volition and thus as per the Constitution her terms cannot be varied to her disadvantage
.

Shame on you Shame on you , Why work to earn the money later than resign and earn the whole "stream" today? Why get the shilling tomorrow rather than today? If this were to be allowed then we'd have a very ugly situation whereby every bright constitutional office holder earns their life long pay today (by resigning) and goes to Hawaii on holiday.

The protection from arbitrary removal does not include own volition.
mukiha
#12 Posted : Monday, October 22, 2012 12:06:28 PM
Rank: Elder


Joined: 6/27/2008
Posts: 4,114
Which law are people applying when they say Baraza is entitled to the salaries for the remaining part of her term?

I have checked the Constitution and there is no such thing!

Which law? Please give Act, Chapter, Section and Sub-section [if applicable]

Otherwise, this is just public entertainment!
Nothing is real unless it can be named; nothing has value unless it can be sold; money is worthless unless you spend it.
mukiha
#13 Posted : Monday, October 22, 2012 12:10:07 PM
Rank: Elder


Joined: 6/27/2008
Posts: 4,114
BTW: That lawyer is talking about "terminal dues spelt out in her contract" Is the contract in the public domain? Who has seen it - except of course Baraza and JSC?
Nothing is real unless it can be named; nothing has value unless it can be sold; money is worthless unless you spend it.
QD
#14 Posted : Monday, October 22, 2012 12:39:43 PM
Rank: Member


Joined: 8/5/2009
Posts: 597
maka wrote:
There is a difference between a protected Constitutional office and a normal contract of employment. Firstly examples abound of judges and constitutional office holders who were paid for the remainder of their term. Justice Ringera is one PLO is another the judges sent packing after the radical surgery are another lot. It is fallacious to suggest that since she resigned during the pendency of the appeal and within the statutory 14 day leave period she will not be entitled to her dues. The JSC Act 2011 is clear she still retained her post as Deputy CJ the President did not get the chance to terminate her, she resigned of her own volition and thus as per the Constitution her terms cannot be varied to her disadvantage


Remember the two you are talking about were removed by third parties in this case the parliament hence their entitlement to their pay of remaining terms.
The problem with the world is that the intelligent people are full of doubts while the stupid ones are full of confidence
Elder
#15 Posted : Monday, October 22, 2012 12:43:20 PM
Rank: Elder


Joined: 9/7/2010
Posts: 2,148
Location: elderville
maka wrote:
There is a difference between a protected Constitutional office and a normal contract of employment. Firstly examples abound of judges and constitutional office holders who were paid for the remainder of their term. Justice Ringera is one PLO is another the judges sent packing after the radical surgery are another lot. It is fallacious to suggest that since she resigned during the pendency of the appeal and within the statutory 14 day leave period she will not be entitled to her dues. The JSC Act 2011 is clear she still retained her post as Deputy CJ the President did not get the chance to terminate her, she resigned of her own volition and thus as per the Constitution her terms cannot be varied to her disadvantage

So in your opinion Justice Ringera and PLO resigned of 'their own volition' just like Justice Baraza? Maybe 'the judges sent packing after the radical surgery are another lot' also resigned of 'their own volition'? If that was true which law was used to support paying those who resign of their 'own volition' full salaries for years not worked for?

The part in red is a real muddle to me. Could you explain it further? The Constitution says that those who resign of their own volition cannot have their terms varied to their disadvantage? Rink please. And if true, which I doubt, once you resign which terms do you remain with?
He who can express in words the ardour of his love, has but little love to express. - Petrach, Son. (That men by various ways arrive at the same end. - Montaigne, The Essays of.)
Zenge
#16 Posted : Monday, October 22, 2012 4:14:52 PM
Rank: Member


Joined: 4/7/2011
Posts: 105
wizi, we should wait and see the mother of all litigations, the nose pincher is one fighter who doesnt gives up easily.
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