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IndustrialStruck OutStatement of Claim dated 14th January 2014 (Employment and Labour Relations Court)· [2014] KEIC 1 (KLR)

Okemwa & 9 others v Judicial Service Commission & another (Cause 16 of 2014) (Employment and Labour) [2014] KEIC 1 (KLR)

Employment and Labour Relations Court
31 January 2014
LNLINNET NDOLO
1,688 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed you cannot sue the Chief Justice personally over judiciary staff decisions—claims must target the Judicial Service Commission instead.

What this practically means

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Executive summary

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By a Statement of Claim dated 14th January 2014, the Claimants sued the Judicial Service Commission (1st Respondent) and the Chief Justice (2nd Respondent), alleging harassment and discrimination, arbitrary downgrading and reduction of salaries, and unfair transfers, together with a Notice of Motion seeking interim restraints against salary reduction, transfers and replacement of staff. The Respondents raised a preliminary objection on a Replying Affidavit sworn by the Registrar of the JSC, contending that the Claimants had no cause of action against the Chief Justice, since they were employees of the JSC and the impugned actions, including the 29th October 2013 letters and decisions of the Commission's meetings of 5th and 6th December 2013, were taken by or under the JSC. The Claimants argued that the Chief Justice was properly joined as Head of the Judiciary under Article 166, having sanctioned their initial appointments in his own capacity rather than as JSC chairperson. The court framed a single issue: whether the Chief Justice was properly joined. Examining Articles 161(2)(a), 163(1)(a), 171 and 172(1) of the Constitution and Section 5(1) of the Judicial Service Act, 2011, the court held that although the Chief Justice 'wears many hats', recruitment and management of judiciary staff vest in the JSC, and in that sphere the Chief Justice can only act as its chairperson. The preliminary objection was upheld and the claim against the Chief Justice struck out, with each party bearing its own costs.

Key legal issues

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01

Proper joinder of the Chief Justice as a Respondent in an employment claim against the JSC

Holding

The Chief Justice was improperly joined; all actions he took regarding the Claimants were in his capacity as chairperson of the JSC, and any wrong is addressable by a claim against the JSC alone.

Reasoning

Article 161(2)(a) establishes the Chief Justice as Head of the Judiciary, Article 171 establishes the JSC with the Chief Justice as chairperson, and Article 172(1) vests recruitment and management of judiciary staff in the JSC. Although the Chief Justice 'wears many hats', in matters of staff recruitment and management he can only operate as chairperson of the JSC and has no powers outside the JSC's mandate under Article 171 and the Judicial Service Act, 2011. Communication on other letterheads does not alter this.

p. 4

Legal principles established

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  • In matters of recruitment and management of judiciary staff, the Chief Justice acts only as chairperson and member of the JSC, and any claim arising from such actions lies against the JSC, not the Chief Justice personally.
  • The use of the Chief Justice's own letterhead or signature in his other titles does not alter that he acted as chairperson of the JSC.

Court orders

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  1. 1.The Respondents' Preliminary Objection is upheld
  2. 2.The Claimants' claim as against the Chief Justice (2nd Respondent) is struck out
  3. 3.Each party to bear their own costs in this application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 161(2)(a)
  • Constitution of Kenya, 2010Article 163(1)(a)
  • Constitution of Kenya, 2010Article 166
  • Constitution of Kenya, 2010Article 171
  • Constitution of Kenya, 2010Article 172(1)
  • Judicial Service Act, 2011Section 5(1)
  • JSSRD (Judicial Service Staff Regulations)Section 71(1)

Cases cited (1)

  • Republic Vs Honourable Evans Gicheru & 3 Others Ex-parte Joyce Manyasi
    Nairobi HC Misc. No. 920 of 2005
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; constitutional provisions on the Judiciary (Articles 161(2)(a), 163(1)(a), 171, 172(1)) and the Judicial Service Act, 2011 considered

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, "Okemwa & 9 others v Judicial Service Commission & another (Cause 16 of 2014)  (Employment and Labour) [2014] KEIC 1 (KLR)", Case Analysis (2014). Statement of Claim dated 14th January 2014 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/1/eng@2014-01-31

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