BY SAM ALFAN.
Judicial Service Commission (JSC) has lost an application challenging the jurisdiction of the Employment and Labour court to determine the qualification of recruitment of magistrates.
Justice Nduma Nderi dismissed the objection by JSC saying the court has the jurisdiction to determine the case filed by Sheria Mtaani Na Shadrack Wambui.
The Judge ruled that there was no doubt that magistrates unlike judges and independent commissioners are employees in public service and the court has jurisdiction to hear and determine disputes arising from recruitment, appointment, discipline and removal of magistrates.
“Accordingly, the preliminary objection by the respondent lack merit and it is hereby dismissed with costs,” ruled.
The lobby group filed the suit seeking to suspend JSC’s decision to recruit persons for the position of resident magistrates on the basis of the qualifications listed by JSC.
In the advertisement on January 27, 2021 and through its website JSC prescribed a three year post admission experience as a pre-requisite qualification for the consideration or appointment as a Resident Magistrate.
But JSC challenged the jurisdiction of the court to hear and determine this dispute on the grounds that the dispute was not an employment and labour dispute as contemplated by Article 162 (2) (a) of the Constitution.
The commission further argued that jurisdiction flows from the Constitution or statute and a literal reading of Article 162(2) (a) together with section 12(1) of the E&LRCA shows that an employer -employee relationship must exist between the applicants and the respondent for the court to have jurisdiction to be seized of the matter which was clearly not the case in this dispute.
JSC submitted that the appointment of magistrates is governed by statute, being Judicial Services Act no 1 of 2011 and if the JSC acted ultra-vires the statute as alleged by the applicant that was a matter that laid squarely within the mandate and jurisdiction of the High Court to determine.
Sheria Mtaani Na Shadrack Wambui opposed the application saying that magistrates are employees of the Judiciary and the JSC, which recruits, appoints, disciplines and removes them is their tacit employer.
Lawyer Shadrack Wambui argued that the recruitment of prospective employees is an employment and labour related matter that falls squarely within the jurisdiction of this court.
He further submitted that unlike Judges and independent commissioners, magistrates were employees in public service and employment was clothed with jurisdiction to hear and determine disputes relating to their recruitment, appointment, discipline and removal.
He submitted further that Labour courts had heard and determined a plethora of disputes filed by or on behalf of magistrates and the issue of lack of jurisdiction did not arise in those specific cases even before the Court of Appeal
