Sheria Mtaani Na Shadrack Wambui & another v Judicial Services Commission [2021] KEELRC 2153 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over recruitment of magistrates
The ELRC has jurisdiction because magistrates are employees in public service; recruitment of prospective employees is an employment and labour relations matter.
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.
Whether prospective employees are covered by section 12 of the E&LRCA
The court accepted, following ELRC decisions cited by the applicants, that recruitment of prospective employees is an employment and labour related matter.
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.
Legal principles established
#- 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
#- 1.The preliminary objection by the respondent is dismissed with costs
- 2.Leave granted to the applicants to file the substantive motion in terms of prayer 1 of the chamber summons
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.