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ELRCDismissedJudicial Review Application dated 17th February 2021 (Notice of Motion)· [2021] KEELRC 1137 (KLR)

Sheria Mtaani Na Shadrack Wambui & Nadi Boru Mohammed & 2 others v Judicial Service Commission (Judicial Review E003 of 2021) [2021] KEELRC 1137 (KLR)

High Court of Kenya
6 July 2021
4,647 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's High Court upheld the Judicial Service Commission's requirement that magistrate applicants have at least three years' legal experience, ruling it fair, not discrimination.

What this practically means

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Executive summary

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The Ex-parte Applicants, through a Notice of Motion dated 17th February 2021 supported by a Statutory Statement and Petition, challenged the Judicial Service Commission's advertisement of 50 Resident Magistrate positions published on or about 27th January 2021, which prescribed three years' post admission experience as an advocate as a pre-requisite qualification. They sought a declaration that the requirement was null and void ab initio for being ultra vires Section 32(2) of the Judicial Service Act and violating Articles 10, 27, 47 and 55 of the Constitution, plus orders of certiorari and prohibition against the recruitment. They argued the requirement locked out qualified young advocates, was not contemplated by statute, breached legitimate expectation, and contravened ILO Convention No. 111. The Respondent, through a Replying Affidavit of the Chief Registrar, maintained it acted under Article 172, Section 32(2) of the Judicial Service Act, Paragraph 10 of the Third Schedule, and its Schemes of Service formulated under Section 47, and that differentiation on experience was not unfair discrimination. The matter was disposed of by written submissions. The Court applied the three-part discrimination test and held that differentiation sieving unqualified persons is permissible, that experience is an inherent requirement of judicial office under Article 1(2) of ILO Convention No. 111, and that the Commission acted within the law. Certiorari and prohibition were held incapable of grant, and the Petition was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the three-year post admission experience requirement was ultra vires the Judicial Service Act

Holding

The Court held the Judicial Service Commission acted within the law in prescribing the three-year post admission experience requirement

Reasoning

The Respondent relied on Article 172 of the Constitution, Section 32(2) of the Judicial Service Act, Paragraph 10 of the Third Schedule (which contemplates experience as a criterion), Section 47 of the Act under which it formulated Schemes of Service for Magistrates, and Section 2 of the Magistrates Act. Paragraph 13(f)(i), Part V of the First Schedule to the Act expressly guides the Commission on legal and life experience. The requirement was therefore anchored in statutory and constitutional mandate rather than foreign considerations.

p. 8
02

Whether the requirement was discriminatory against young advocates

Holding

The requirement was permissible differentiation, not unfair discrimination

Reasoning

The Court adopted the three-stage test: whether the act differentiates between persons in the same category, whether the differentiation amounts to discrimination, and whether the discrimination is unfair. Differentiation that sieves unqualified persons who do not meet stipulated requirements is not discrimination. The position of Resident Magistrate inherently requires legal knowledge and experience, so a minimum experience requirement falls within Article 1(2) of ILO Convention No. 111 and does not breach Articles 10, 27, 47 and 55.

p. 8
03

Whether the 2nd Ex-parte Applicant's legitimate expectation was breached

Holding

The expectation was misplaced because some degree of experience is required to hold the office of Resident Magistrate

Reasoning

The Applicant asserted a legitimate expectation that she could be shortlisted and interviewed despite lacking three years post admission experience. The Court found no such legitimate expectation could arise against an employer acting within the law, since experience is an inherent requirement of judicial office whose decisions are appealable to the High Court.

p. 8

Legal principles established

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  • Differentiation by an employer based on the inherent requirements of a job, such as a minimum post admission experience, is constitutionally permissible and does not amount to unfair discrimination
  • Article 1(2) of the ILO Convention No. 111 permits distinction, exclusion or preference based on the inherent requirements of a particular job

Court orders

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  1. 1.The Petition/Application was dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 23(3), 27, 47, 55, 73(2), 172
  • Judicial Service Act, No. 1 of 2011Sections 2 (First Schedule Paragraph 13(f)(i)), 7, 32(2), 47; Third Schedule Part III Paragraph 10
  • Magistrates Act, 2015Section 2
  • Statutory Instruments Act, No. 23 of 2013Section 24(2)
  • Employment Act, 2007Section 5(7)
  • Fair Administrative Action ActSection 11
  • Employment and Labour Relations Court ActSection 12
  • ILO Convention No. 111 Discrimination (Employment and Occupation) Convention, 1958Article 1(1) and 1(2)

Cases cited (12)

  • Joy Brenda Masinde v Law Society of Kenya & Another
    [2015] eKLR
  • Githu Muigai & Another v Law Society of Kenya & Another
    [2015] eKLR
  • Henry Mutundu v Chairperson, Independent Electoral and Boundaries Commission & Another; Attorney General (Interested Party)
    [2019] eKLR
  • Wambua Maithya v Pharmacy and Poisons Board; Pharmaceutical Society of Kenya & 2 Others (Interested Parties)
    [2019] eKLR
  • Law Society of Kenya v Attorney General & National Assembly
    [2016] eKLR
  • Resley v The City Council of Nairobi
    [2006] 2 EA 311
  • Republic v Chief Magistrate Milimani Commercial Court & 2 Others Ex-Parte Violet Ndanu Mutinda & 5 Others
    [2014] eKLR
  • Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge & Others
    [1997] eKLR Civil Appeal No. 266 of 1996 (CAK)
  • David Mugo t/a Manyatta Auctioneers v Republic
    Civil Appeal No. 265 of 1997
  • Republic v Disciplinary Committee of the Law Society of Kenya Ex parte Robinson Onyango Malombo
    [2010] eKLR
  • Willis v The United Kingdom
    No. 36042/97, ECHR 2002-IV
  • EG & 7 Others v Attorney General; DKM & 9 Others; Katiba Institute & Another
    [2019] eKLR
Jurisdiction invoked
Article 23(3) of the Constitution; Section 11 of the Fair Administrative Action Act; Section 12 of the Employment and Labour Relations Court Act (as urged by the Applicants)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sheria Mtaani Na Shadrack Wambui & Nadi Boru Mohammed & 2 others v Judicial Service Commission (Judicial Review E003 of 2021) [2021] KEELRC 1137 (KLR)", Case Analysis (2021). Judicial Review Application dated 17th February 2021 (Notice of Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1137/eng@2021-07-06

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