Havi v Judicial Service Commission & another (Petition E039 of 2024) [2024] KEELRC 798 (KLR)

The Court held that where terms attached to a constitutional office concern human resource functions, disputes about their exercise still fall within ELRC jurisdiction absent an express ouster. The respondents performed the employer's recruitment prerogative, so the petitioner could invoke section 12(2) of the ELRC Act. The Supreme Court's decision in Kenya Tea Growers Association confirms the ELRC may determine constitutional questions arising within disputes in its jurisdiction.

Applying Narok County Government v Birir, Okiya Omtatah Okoiti, Paul Nyadewo Onyango and ILO Recommendation R198 on disguised employment relationships, the Court held that public officers work for the benefit of the sovereign, are integrated into the sovereign's systems, and their nomenclature or part-time character does not defeat the existence of an employment relationship with the people.

The Court held the Manual's 30-day terminal leave provision applies to public officers under the Public Service Commission, and Article 234(1) provides that PSC powers and functions do not apply to state officers such as a JSC member. The 2nd respondent's five-year tenure under Article 171(4) had not lapsed, so there was no vacancy.

Section 16 of the Leadership and Integrity Act requires declaration of conflicts of interest at meetings, and section 41 provides for disciplinary measures. These alternative remedies were not invoked or exhausted. Even if the alleged conflict were established, it would impair only the selection of the first shortlisted candidate and could not ground a conservatory order affecting the entire recruitment process.

The petitioner did not obtain the shortlisting parameters or score sheet. The replying affidavit explained the criteria applied. Following Chama Cha Mawakili, an objective predetermined score sheet is required, but the petitioner failed to show the experience factor was discriminatorily or non-objectively applied; the ground collapsed as a basis for a conservatory order.

The petitioner's reliance on the Pakistani case of Khawaja Muhammad Asif was persuasive only. The Court, applying its holding in Captain Paul Rukaria v Hon. Attorney General and Article 259(3)(a) permitting an office's functions to be exercised as occasion requires by the office holder, held the 2nd respondent is not barred from performing JSC roles in the sunset days of his tenure.