BY SAM ALFAN.
Former Law Society of Kenya (LSK) president Nelson Havi has moved to court seeking to prohibit the outgoing commissioner Macharia Njeru from acting as the LSK representative to the Judicial Service Commission (JSC).
Lawyer Havi wants Njeru prohibited from participating in the actions and decisions of JSC including interviews for candidates for Judges of the High Court, set to begin from April 3.
The city lawyer further wants the court to quash the decision of JSC communicated in the notice dated 7th March, 2024 notifying the public of shortlisted candidates for interviews for the judges.
According to lawyer Havi, majority of the candidates shortlisted are above 15 years’ experience whilst a majority of the applicants rejected are between 10 and 14 years’ experience.
“For instance, for the first 20 shortlisted candidates only 1 is of 14 years’ experience with none below that practice years limit. On the other hand, for the list 20 rejected application 7 are between 10 to 14 years practice years limit,” says Havi.
Havi further seeks the court to direct JSC to consider and evaluate the applications for candidates for interviews for the office of Judge of High Court received subsequent to the notice published by the JSC on 13th October last year and the consideration and evaluation be undertaken by JSC in strict compliance with the requirements of Article 166(5) of the Constitution.
The lawyer further seeks the court to issue a conservatory order suspending the implementation of the decision of the JSC communicated on 7th of March 2024 notifying the public of shortlisted candidates for interviews for the public judge scheduled to commence next month.
Havi argues that upon the election of incoming LSK male representative lawyer Omwanza Ombati to the JSC, the mandate of Njeru ceased to act for the LSK as its male representative.
He adds that Njeru being a holder of Public office or state officer was obliged to proceed to terminal leave 30 days before the 5th anniversary of his swearing in being on April 14th pursuant to the requirements of section E 12 of the Human Resources Policies and Procedures manual for public service, 2016.
He adds that the interview for High court judges are scheduled for 3rd of April and the first candidate scheduled to be interviewed is Macharia Njeru.
Havi further adds that he requested JSC to cancel interviews until incoming commissioner Omwanza is sworn in but the commission declined and informed him the process will proceed with interviews with Macharia as the male representative despite protestation.
Havi accuses the JSC and Macharia of denying him right to be represented in the making of the decision of JSC by an elected representative of his choice and thereby curtailing him his enjoyment of the rights and fundamental freedom.
Havi adds that JSC and Macharia have failed to observe, respect, protect, promote and fulfil the rights and fundamental freedoms of the Petitioner in the Bill of Rights by curtailing the Petitioner’s entitlement to elective representation in the making of decisions by the JSC contrary to the requirements of Article 21 (1) as read together with Article 38 (2) (a) of The Constitution of Kenya.
“The 1st and 2nd Respondents (JSC and Macharia) have limited the Petitioner’s (Havi) entitlement to elective representation in the making of decisions by the 1st Respondent contrary to the requirements of Article 24 (1) as read together with Article 38 (2) (a) of the Constitution of Kenya,” he adds
Havi argues that JSC and Macharia have discriminated against a majority of applicants for the public office of Judge with over 10 years of experience but below 15 years of experience contrary to the requirements of Article 27 (1), (2), (3), (4) as read together with Article 166 (5) of the Constitution.
He adds that the Commission and Macharia have violated Article 38 (2) (a) of The Constitution of Kenya by imposing Macharia in the elective public office of male representative of the LSK in place of the duly elected male representative subsequent.
