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ELRCDismissed

Sammy Osundu Likaroni – Interested Party (On Behalf of Senior Court Assistants – JSG.7) Formerly (Senior Clerical Officers) and all other affected Judicial Staff v Judicial Service Commission & 3 others [2020] KEELRC 18 (KLR)

High Court of Kenya
16 December 2020
2,074 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed anyone can sue to defend others' constitutional rights, so the JSC recruitment challenge will proceed to full trial.

What this practically means

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Executive summary

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The petitioner, a non-employee of the judiciary, filed a petition on 13th November 2020 challenging the criteria used by the respondents, including the Judicial Service Commission, in conducting interviews of Court Administrators between 21st October and 11th November 2020, sued on behalf of the aggrieved Senior Court Assistants cadre and other judicial staff. The respondents filed a Notice of Preliminary Objection dated 19th November 2020 seeking to strike out the petition on the ground that the petitioner lacked locus standi under Article 22(2) of the Constitution, since he was not a judiciary employee and no judicial officer had personally presented a complaint over employment matters, which they characterised as private law in personam matters. The respondents further invoked the Anarita Karimi Njeru principle, contending the petition lacked precision as to the rights infringed. The petitioner, relying on Articles 22, 258 and 159 of the Constitution, the Employment Act, 2007, Sollo Nzuki and Mumo Matemu, argued he acted in the public interest and on behalf of staff who feared victimisation. The court framed a sole issue: the petitioner's standing. Applying the broad approach to standing in public interest litigation endorsed in Sollo Nzuki and Priscilla Nyokabi, and the standard in Mumo Matemu that Article 258 governs locus standi, the court held the petitioner met the threshold of Articles 258 and 22, whether acting on behalf of others or in the public interest. The merits were left for full trial. The preliminary objections were dismissed with costs following the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petitioner, a non-employee of the judiciary, has locus standi to institute the petition on behalf of aggrieved judicial staff (Senior Court Assistants) under Articles 22 and 258 of the Constitution

Key legal issues

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01

Locus standi of a non-employee to petition on behalf of aggrieved judicial staff

Holding

The petitioner satisfies the standing threshold under Articles 258 and 22 of the Constitution, having anchored the petition in the public interest and on behalf of a group or class of persons who allegedly cannot act in their own name for fear of victimisation.

Reasoning

The court applied Article 258, which permits proceedings by any person acting in their own interest, on behalf of another who cannot act in their own name, as a member of or in the interest of a group or class, or in the public interest. Relying on Sollo Nzuki and Mumo Matemu, the court adopted a broad approach to standing in public interest litigation, holding that the petitioner, who alleged actual and threatened violation of the Constitution, could not be faulted for instituting the proceedings despite not being a judiciary employee.

p. 4
02

Precision in framing constitutional petitions (Anarita Karimi Njeru principle)

Holding

The court endorsed the requirement that a constitutional petition set out with reasonable precision the complaints, the provisions infringed and the manner of infringement; the petitioner's citation of the constitutional and Employment Act provisions was noted in this regard.

Reasoning

Relying on Patrick Okoth Otieno and Anarita Karimi Njeru, the court reiterated that pleadings give fair notice and define the dispute, and that the reasonable-precision rule is an extension of the principle that cases be dealt with justly. The petitioner had cited the specific constitutional articles and Employment Act sections underpinning the petition.

p. 3

Legal principles established

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  • Under Article 258 of the Constitution, any person acting in their own interest, on behalf of another, in the interest of a group or class of persons, or in the public interest may institute proceedings claiming that the Constitution has been contravened or is threatened with contravention; the petitioner enjoys special standing under that Article.
  • A party approaching the court on a constitutional matter must set out with a reasonable degree of precision the complaints, the provisions said to be infringed, and the manner of infringement (the Anarita Karimi Njeru principle).
  • Locus standi is a totally different matter from the merits of a petitioner's case.

Court orders

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  1. 1.The Preliminary Objections dated 19th November, 2020 by the respondents are found without merit and dismissed
  2. 2.Costs shall follow the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22 and 258 of the Constitution of Kenya, 2010

Relief refused

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Striking out of the petition as sought by the respondents in their Notice of Preliminary Objection

The petitioner met the threshold of Articles 22 and 258 of the Constitution; locus standi is distinct from the merits, which fall for determination at full trial

p. 4

Costs

Costs shall follow the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly the Preliminary Objections dated 19 th November, 2020 by the respondents are found without merit and are hereby dismissed. Costs shall follow the cause.
p. 4Final orders - dismissal of the preliminary objections
In light of the allegations comprised in the petition, the court finds the petitioner meets the threshold of Article 258 and 22 of the Constitution, 2010 and cannot fault the Petitioner for instituting these proceedings and I hold that he is within his right to commence the same.
p. 4Standing under Articles 22 and 258
The petitioner having anchored the petition under the provisions of Article 258 of the Constitution enjoys special standing with the court to attend and urge the matters set out therein.
p. 3Special standing under Article 258
As to whether the petition is with merit, such can only be determined in a full trial. Locus standi is a totally different matter from the merits of the petitioner’s case.
p. 4Locus standi distinguished from merits
a person seeking redress from the court on a matter which involves a reference to the Constitution, it is important that he should set out with a reasonable degree of precision his complaints, the provisions said to be infringed, and the manner in which they are alleged to be infringed
p. 3Anarita Karimi Njeru precision principle

Issues in the judgment

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minor

The judgment does not state the petition's case number, and refers to the represented staff as 'disenfranchised judges' in one passage where 'judicial staff' appears intended.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sammy Osundu Likaroni – Interested Party (On Behalf of Senior Court Assistants – JSG.7) Formerly (Senior Clerical Officers) and all other affected Judicial Staff v Judicial Service Commission & 3 others [2020] KEELRC 18 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/18/eng@2020-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.