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ELRCPartially AllowedChamber Summons application dated 4th February 2021 (ELRC, Nairobi)· [2021] KEELRC 2153 (KLR)

Sheria Mtaani Na Shadrack Wambui & another v Judicial Services Commission [2021] KEELRC 2153 (KLR)

Employment and Labour Relations Court
16 February 2021
1,592 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicants, prospective candidates for Resident Magistrate positions advertised by the Judicial Service Commission in January 2021, sought leave to apply for judicial review orders challenging the advertisement's requirement of three years' post-admission experience, and an order that leave operate as a stay of the recruitment. The respondent, the Judicial Service Commission, filed a preliminary objection arguing that the Employment and Labour Relations Court lacked jurisdiction because the dispute was not an employment and labour dispute under Article 162(2)(a) of the Constitution and section 12 of the E&LRCA, as no employer-employee relationship existed, and that appointment of magistrates is governed by the Judicial Service Act with disputes falling to the High Court. The respondent relied on the Court of Appeal decision in Attorney General v Okiya Omtata Okoiti, holding that appointment of independent commissioners is not a labour issue. The applicants distinguished that case, relying on ELRC decisions holding that recruitment of prospective employees is within this Court's jurisdiction and submitting that magistrates are employees in public service. Relying on Mugendi v Kenyatta University and USIU v Attorney General as the locus classici on the jurisdictional division between the ELRC and the High Court, the court held that magistrates, unlike judges and independent commissioners, are public service employees, and the ELRC has jurisdiction over disputes arising from their recruitment, appointment, discipline and removal. The preliminary objection was dismissed with costs. Leave to file the substantive motion was granted, but the question of whether leave should operate as a stay was deferred for inter-parties argument. Delivered virtually on 16th February 2021 by Mathews N. Nduma J.

Key legal issues

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01

Jurisdiction of the ELRC over recruitment of magistrates

Holding

The ELRC has jurisdiction because magistrates are employees in public service; recruitment of prospective employees is an employment and labour relations matter.

Reasoning

The court considered Mugendi v Kenyatta University and USIU v Attorney General as the locus classici on the division of jurisdiction between the ELRC and the High Court in borderline cases. It distinguished the Court of Appeal decision in Omtata, which concerned independent commissioners holding sui generis offices subject only to the Constitution and enjoying security of tenure. Magistrates, by contrast, are employees in public service, so disputes concerning their recruitment and appointment fall under section 12 of the E&LRCA.

p. 3
02

Whether prospective employees are covered by section 12 of the E&LRCA

Holding

The court accepted, following ELRC decisions cited by the applicants, that recruitment of prospective employees is an employment and labour related matter.

Reasoning

The respondent argued that no employer-employee relationship existed because the applicants were prospective, not actual, employees. The applicants relied on decisions of this Court (Ongaya J, Mbaru J, Marete J) holding that recruitment of prospective employees falls within the court's jurisdiction. The court accepted this position as applied to magistrates, who are public service employees.

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Legal principles established

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  • Magistrates, unlike judges and independent commissioners, are employees in public service and the ELRC has jurisdiction over disputes arising from their recruitment, appointment, discipline and removal

Court orders

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  1. 1.The preliminary objection by the respondent is dismissed with costs
  2. 2.Leave granted to the applicants to file the substantive motion in terms of prayer 1 of the chamber summons
  3. 3.The issue whether leave should operate as stay of the respondent's decision to be argued inter-parties upon filing of the substantive motion

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a); Articles 159(2)(d) and 48
  • Employment and Labour Relations Court ActNo. 20 of 2011, section 12(1)
  • Judicial Service ActNo. 1 of 2011
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActChapter 21, section 18

Cases cited (9)

  • The Owners of the Motor Vessel "lilian S" v Caltex Oil (K) Ltd
    [1989] eKLR
  • Samuel Macharia v. Kenya Commercial Bank & 2 Others
    [2012] eKLR
  • In the Matter of Interim Independent Electoral Commission
    [2011] eKLR
  • Attorney General & 2 Others v. Okiya Omtata Okoiti & 15 Others
    [2020] eKLR
  • Trusted Society of Human Rights Alliance v. Nakuru Water & Sanitation Services
    [2013] eKLR
  • Kenya National Parents Association
    [2015] eKLR
  • Daniel Kipkoech
    [2017] eKLR
  • Daniel N. Mugendi v. Kenyatta University & 3 others
    [2013] eKLR
  • United States International University (USIU) v. The Attorney General & Others
    [2012] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act No. 20 of 2011

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 & another v Judicial Services Commission [2021] KEELRC 2153 (KLR)", Case Analysis (2021). Chamber Summons application dated 4th February 2021 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2153/eng@2021-02-16

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