Wasilwa v Judicial Service Commission; Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers & 3 others (Interested Parties) (Petition E237 of 2023) [2024] KEELRC 1071 (KLR)
The bottom line
#Kenya's Employment Court ruled it can hear a judge's challenge to Judicial Service Commission disciplinary proceedings, dismissing the Commission's attempt to block the case.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction: existence of an employer-employee relationship between a judge and the Judicial Service Commission
The objection to the lack of an employer-employee relationship fails. Although a judge is not an employee in the statutory sense, the Commission, acting as constitutional agent, foreman, manager and factor of the people of Kenya in recruiting, setting terms of service and disciplining judges, is a putative employer sufficient to found jurisdiction.
The court reasoned that section 2 of the Employment and Labour Relations Court Act and the Employment Act recognise a putative employer (agent, foreman, manager or factor of the real employer). The people of Kenya delegated judicial authority to the judiciary and the Commission under article 1(3), and the Commission performs employer-like functions on the people's behalf. The President's role is nominal, the SRC sets remuneration for all state officers, and the removal Tribunal has no other constitutional role, so none of them can be the putative employer. The Commission therefore qualifies as putative employer.
Prematurity of the petition
The petition is not premature. A threat to rights suffices under article 22, and complaints about the conduct of ongoing removal proceedings, such as bias and curtailment of cross-examination, should be addressed before the proceedings conclude.
The court noted that article 22 entitles a person to institute proceedings where a right is denied, violated, infringed or threatened, and the Commission had not yet decided the complaint. Allegations of bias and denial of the advocate's right to cross-examine engage the right to fair administrative action under article 47 and the Fair Administrative Action Act, and should be determined for the proceedings to continue to conclusion. The court endorsed the Supreme Court's Chitembwe guidance that recourse lies to the High Court (and by parity to this court) while JSC proceedings are ongoing.
Nature of a preliminary objection
A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct, per Mukisa Biscuits.
The court adopted the classic formulations in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd and Sir Charles Newbold P's demurrer analogy, holding that such an objection must be capable of disposing of the suit as a point of law without ascertaining facts or exercising discretion.
Legal principles established
#- A judge is not an employee within the meaning of the Employment Act or the Employment and Labour Relations Court Act; a judge holds a constitutional office and is a state officer and office holder.
- In performing its constitutional functions concerning the recruitment, terms of service and discipline of judges on behalf of the people of Kenya, the Judicial Service Commission assumes the character of a putative employer.
- A judge against whom the Commission is conducting removal proceedings may challenge the conduct of those proceedings before their conclusion, as a threat to rights suffices to invoke articles 22 and 23.
Court orders
#- 1.The notice of preliminary objection dated December 20, 2023 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, 2011; empanelment by the Chief Justice for substantial questions of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wasilwa v Judicial Service Commission; Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers & 3 others (Interested Parties) (Petition E237 of 2023) [2024] KEELRC 1071 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1071/eng@2024-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.