Lawsuit throws judges hiring in limbo

Wednesday, April 3rd, 2024 03:27 | By
Former LSK President Nelson Havi at a previous event. PHOTO/Print
Former LSK President Nelson Havi at a previous event. PHOTO/Print

Interviews for the recruitment of 20 new judges that is scheduled to commence this morning hangs in the balance after the High Court ruled to begin hearing the case challenging the process today.

Justice Anna Ngibuini Mwaure of the Employment and Labour Relations Court yesterday certified the case filed by former Law Society of Kenya (LSK) President Nelson Havi challenging the interviews as urgent and set the hearing for today.

On the other hand, the Judicial Service Commission (JSC), which Havi had sued, issued a statement declaring that the interviews would commence this morning.

“The interviews will be live streamed on the JSC Facebook page and YouTube channel. Profile information of each candidate (including photos) will be shared on JSC social media platforms at the beginning of each interview,” JSC said in a statement sent to newsrooms.

Havi had in an application filed Milimani Employment and Labour Relations Court, Havi requested the court to cancel the scheduled interviews called by JSC until after the assumption to office of Samson Omwanza Ombati as the Law Society of Kenya (LSK) male representative to the JSC.

“Pending determination of this application, a conservatory order be issued suspending the implementation of the decision of the JSC communicated on March 7, 2024, notifying the public of shortlisted candidates for interviews for the public office of the Judge of the High Court from April 3 to 30,2024,” Havi had sought.

The vocal lawyer argued that the Chief Justice Martha Koome led commission has contravened Article 10 of the constitution in shortlisting candidates for positions of High Court Judges by allowing the outgoing JSC commissioner Macharia Njeru to participate in the making of major decisions at the commission since he lacks the representative legitimacy and mandate of advocates.

“The JSC is acting against the rule of law by allowing Njeru to participate in the making of a major decision of the commission without the elective representative mandate of advocates to the commission following the election of Samson Omwanza Ombati on February 29,2024,” Havi stated in his court papers.

He added that the shortlisting of candidates for interviews subsequent to the election of Omwanza violates his right under Article 41 of the constitution to form, join or participate in the activities and programmes of the LSK at the JSC.

“The commission had violated the law by undertaking the shortlisting of candidates for interviews for the public office of Judge of the High Court of Kenya in disregard of the principles of good governance, integrity, transparency and accountability which preclude Njeru from participating in the making of major decisions of the JSC during the transition period following the election of Omwanza,” the court papers stated.

The former LSK President is opposed to the interviews stating that the JSC has denied him the right to be represented in the making of decisions of the Commission by an elected representative of his choice.
“The commission has violated the constitution by denying me the right to public participation in the making of the decision by the JSC in respect to the shortlisting of candidates for interviews for the public office of Judge of the High Court of Kenya through our elected male representative to the commission,” Havi contended.

Further, the lawyer faults JSC for discriminating against the majority of the applicants who had applied for High Court Judges interviews with over 10 years experience but below 14 years of experience contrary to the requirements of Article 27 and 166 of the constitution.

“JSC has contravened the law by failing to ensure inclusiveness and equality in the shortlisting by excluding a majority of applicants of below 15 years’ experience,” the lawyer says.

Havi is also opposed to the recruitment process saying it is conflicted since the first candidate namely Adelaide Akong’a Amimo shortlisted for the interviews on April 3,2024 is Commissioner Njeru’s partner at Macharia-Mwangi & Njeru Advocates.

In his pleadings, Havi wants the court to quash JSC notice dated March 7, 2024 which includes a hundred shortlisted individuals by JSC.

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