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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 1424 (KLR)

Constantine Joseph Advocates LLP v Judicial Service Commission & 2 others (Petition 195 of 2021) [2023] KEELRC 1424 (KLR)

High Court of Kenya
10 May 2023
NMNzioki wa Makau
4,842 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner sought a declaration that at least five percent of judges of the Supreme Court, Court of Appeal and High Court ought to be persons with disabilities, mandamus compelling the Judicial Service Commission to take affirmative action in recommending qualified persons with disabilities for judicial appointment, and mandamus against the National Council of Persons with Disabilities to secure the five percent employment reservation under Articles 10(2)(b), 27(6) and 54(2) of the Constitution and section 13 of the Persons with Disabilities Act, 2003. The JSC opposed, arguing the Petition lacked precision and evidential support, offended the ripeness and political question doctrines, and that Article 54(2) creates a progressive principle owed by the State, not by independent commissions. The 2nd and 3rd Respondents did not enter appearance. The court held that section 13 of the PWD Act read with Regulation 11(3) and Article 54(2) confer no right or duty on the Respondents, imposing instead a progressive obligation on 'the State', which cannot be equated with Chapter Fifteen independent commissions. Adopting the ripeness doctrine as articulated in Wanjiru Gikonyo, the court found the Petition hypothetical, premature and devoid of a factual matrix, particularly as no qualified person with a disability was shown to have been overlooked in any recruitment. The Petition was dismissed with costs to the 1st Respondent on 10 May 2023.

Key legal issues

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01

Whether the five percent reservation obligation is enforceable against the 1st and 2nd Respondents

Holding

No – the obligation is a principle of progressive implementation placed on the State, not on the Respondents

Reasoning

The court read section 13 of the PWD Act with Regulation 11(3) and Article 54(2) together and concluded that they confer no right or duty on any person or organ but require progressive realisation. Article 54(2) directs 'the State', defined in Article 260 as the collectivity of government organs, and the court agreed this cannot be equated with independent commissions such as the JSC under Chapter Fifteen.

p. 8
02

Ripeness/justiciability of the Petition

Holding

The Petition was premature and hypothetical, offending the ripeness doctrine, and was fit for dismissal

Reasoning

The Petitioner provided no evidence of any qualified person with a disability who applied and was overlooked, nor did it challenge any particular recruitment. Adopting Onguto J's formulation in Wanjiru Gikonyo, the court held that justiciability dogma prohibits courts from entertaining hypothetical or academic cases, and an issue must be ripe through a factual matrix for determination.

p. 9

Legal principles established

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  • The obligation in Article 54(2) and section 13 of the PWD Act rests on the State, not on independent commissions under Chapter Fifteen
  • A constitutional petition premised on hypothetical scenarios without a factual matrix offends the ripeness doctrine and is fit for dismissal

Court orders

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  1. 1.Petition dismissed
  2. 2.Costs of the Petition awarded to the 1st Respondent, the 2nd and 3rd Respondents having not appeared or participated
Jurisdiction invoked
Constitution of Kenya, 2010 – petition for enforcement of constitutional rights (Articles 10(2)(b), 27(6) and 54(2)) under Articles 22 and 23

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, "Constantine Joseph Advocates LLP v Judicial Service Commission & 2 others (Petition 195 of 2021) [2023] KEELRC 1424 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1424/eng@2023-05-10

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