The employment and labour relations court has dismissed an application by the Judicial Service Commission (JSC) challenging the jurisdiction of the said court to hear and determine a petition challenging the qualifications needed to be a magistrate.
Justice Nduma Ndeli 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 lacks merit and is dismissed with costs,” ruled Justice Ndeli.
JSC filed a preliminary objection claiming that the court lacked jurisdiction to hear and determine the petition filed by Sheria Mtaani Na Shadrack Wambui.
Sheria Mtaani Na Shadrack Wambui filed a suit seeking to suspend the commission’s decision of advertising ,recruiting, shortlisting, interviewing, vetting, employing persons as Resident Magistrates on the basis of the qualifications listed on the respondent’s Newspaper advertisement of on or about the 27th January 2021 and through its website to the extent that it has prescribed a three year post admission experience to bar as a pre-requisite qualification for the consideration or appointment as a Resident Magistrate.
According to JSC, the case is not an employment and labour dispute as contemplated by Article 162 (2) (a) of the Constitution and section 12 of the Employment and Labour Relations Court Act No. 20 of 2011 and that no Employer- employee relationship exists as between the applicants and the Respondent within the meaning of section 12 of the Employment and Labour Relations Act No.20 of 2011.
The commission argued that an employer -employee relationship must exist between the applicant and the respondent for the court to have jurisdiction to be seized of the matter which was clearly not the case in this dispute.
It 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 and made submissions to distinguish this bidding decision of the Court of Appeal from the matter in question stating among other reasons 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 added 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
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.
