Okemwa & 9 others v Judicial Service Commission & another (Cause 16 of 2014) [2014] KEIC 1 (KLR) (Employment and Labour) (31 January 2014) (Ruling)

Okemwa & 9 others v Judicial Service Commission & another (Cause 16 of 2014) [2014] KEIC 1 (KLR) (Employment and Labour) (31 January 2014) (Ruling) Nicholas Muturi Okemwa & 9 others v Judicial Service Commission & another [2014] eKLR Neutral citation: [2014] KEIC 1 (KLR) Republic of Kenya In the Industrial Court at Nairobi Employment and Labour Cause 16 of 2014 L Ndolo, J January 31, 2014 Between Nicholas Muturi Okemwa 1st Claimant Anne Nyokabi Ng'ang'a 2nd Claimant Chrispine Mbugua Kabiro 3rd Claimant Brigid Jepkemboi Konga 4th Claimant Lucy Nyambura Waweru 5th Claimant Anne Wamaitha Murigi 6th Claimant Mary Muthoni Njunge 7th Claimant Joslyne Kathure Ndubi 8th Claimant Lynette Wambui Mwangi 9th Claimant Stanley Mutuma Murunga 10th Claimant and Judicial Service Commission 1st Respondent The Honourable Chief Justice of the Republic of Kenya 2nd Respondent Ruling Introduction 1.By a Statement of Claim dated 14th January 2014, the Claimants have sued the Judicial Service Commission (JSC) as the 1st Respondent and the Honourable Chief Justice of the Republic of Kenya as the 2nd Respondent. The issues in dispute as set out in the Statement of Claim are harassment and discrimination; arbitrary, unlawful and illegal down grading and reduction in salaries; unfair and punitive transfers of the Claimants. 2.Simultaneously with the Memorandum of Claim, the Claimants filed a Notice of Motion under Certificate of Urgency seeking the following orders:a.That the Respondents be restrained by themselves or their servants, agents, officers or any other person whomsoever from downgrading and slashing, reducing, or in any other way diminishing the Claimants' salaries or other allowances pending the hearing and determination of the application inter partes.b.That the Respondents be restrained by themselves or their servants, agents, officers or any other person whomsoever from transferring the Claimants from the Office of the Chief Registrar of the Judiciary pending the hearing and determination of the application inter partes.c.That the Respondents be restrained by themselves or their servants, agents, officers or any other person whomsoever from interviewing, sourcing, employing or in any other way deploying any other person(s) to undertake the duties of the offices previously held by the Claimants in the Office of the Chief Registrar of the Judiciary pending the hearing and determination of this application inter partes.d.That the Respondents be restrained by themselves or their servants, agents, officers or any other person whomsoever from transferring, downgrading and slashing, reducing or in any other way diminishing the Claimants’ salaries or other allowances pending the hearing and determination of the suit.e.That the Respondents be restrained by themselves or their servants, agents, officers or any other person whomsoever from interviewing, sourcing, employing or in any other way deploying any other person(s) to undertake the duties of the offices previously held by the Claimants in the Office of the Chief Registrar of the Judiciary pending determination of the suit. 3.The Claimants' application came before me ex parte on 14th January 2014 when I was the Duty Judge. I certified it urgent and directed the Claimants to serve the Respondents. Preliminary Objection 4.In a Replying Affidavit sworn by Winfrida Mokaya, the Registrar of the JSC on 20th January 2014, the Respondents took issue with joiner of the Chief Justice in these proceedings. Mokaya deponed that the Claimants have no cause of action in law against the Chief Justice and that the claim and the application herein as against the Chief Justice should be struck out in limine. Arguments on the Preliminary Objection were presented on 24th January 2014 with Mr. Muumbi appearing for the Claimants and Senior Counsel Paul Muite appearing with Mr. Issa for the Respondents. 5.Mr. Muite submitted that the Claimants were employees of the JSC, the 1st Respondent herein, a fact that the Claimants had themselves admitted in the Supporting Affidavit sworn by Nicholas Muturi Okemwa on 14th January 2014. Further, the letters dated 29th October 2013 asking the Claimants to proceed on leave, were signed by the Chief Justice on behalf of the JSC, in his capacity as its Chairman. 6\. =Additionally, the actions complained of arose out of decisions taken by the JSC, in its meetings held on 5th and 6th December 2013 as communicated by the Registrar of the JSC to the Acting Chief Registrar of the Judiciary by memo dated 18th December 2013. 7\. =Making reference to the case of Republic Vs Honourable Evans Gicheru &3 Others Ex-parte Joyce Manyasi (Nairobi HC Misc. No. 920 of 2005), Counsel submitted that any action by the Chief Justice was taken by virtue of delegated authority from the JSC. It was therefore the JSC alone that was answerable for any action taken in its name. The Claimant's Reply 8.Mr. Muumbi for the Claimant submitted that the Chief Justice was joined in these proceedings in his official capacity as the Head of the Judiciary. Counsel pointed out that there were certain actions taken by the Chief Justice that did not emanate from the JSC to wit; approval of the Claimants' initial appointments. In view of the Respondents' defence that these appointments were unilateral decisions by the former Chief Registrar of the Judiciary, the joiner of the Chief Justice who had sanctioned these appointments, was justifiable and necessary. 9.According to Counsel, the employment of the Claimants by the former Chief Registrar of the Judiciary was sanctioned by the Chief Justice in his official capacity as Chief Justice not as Chairman of the JSC since there were no minutes of the Commission approving the appointments. Further, the letters dated 29th October 2013, asking the Claimants to proceed on leave were signed by the Chief Justice in his capacity as Chief Justice and not as Chairman of the JSC. 10.ACounsel observed that the Office of the Chief Justice is an institution under Article 166 of the Constitution. It follows therefore that if the Chief Justice erred in any of the transactions forming the subject matter of the Claimants' claim, he would have done so in his capacity as Chief Justice and not as Chairman of the JSC. The Claimants therefore had a legitimate claim against the Chief Justice. The Respondents' Final Reply 11.AIn final reply, Mr. Muite drew the attention of the Court to Memo dated 13th September 2011 from the Chief Registrar to the Chief Justice requesting approval to hire two officers on short term contract as provided for in JSSRD Section 71(1). According to Counsel the document cited by the Chief Registrar in her memo to the Chief Justice, were regulations of the JSC. The Court was also referred to a document dated 23rd August 2013 authored by Rose Achieng, Assistant Director of HRM in which she had raised issues of non conformity with regulations of the Commission in the recruitment of the Claimants. Ruling by the Court 12.The single issue for determination in this ruling is whether the Chief Justice has been properly joined as a Respondent in these proceedings. 13.Article 161(2)(a) of the Constitution establishes the Office of the Chief Justice as the Head of the Judiciary. Article 163(1)(a) then establishes the Supreme Court with the Chief Justice as its President. 14.Pursuant to these constitutional provisions, Section 5(1) of the [Judicial Service Act](http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/Judicial_Service_Act_2011.pdf)[, 2011](http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/Judicial_Service_Act_2011.pdf) provides that:(1)The Chief Justice shall be the head of the Judiciary and the President of the Supreme Court and shall be the link between the Judiciary and the other arms of Government.(2)Despite the generality of subsection (1) the Chief Justice shall-(a)...........(b).............(c)exercise general direction and control over the Judiciary. 15.Additionally, Article 171 of the Constitution establishes the JSC with the Chief Justice as its chairperson. 16.What emerges from these provisions is that the Chief Justice as the Head of the Judiciary, carries a number of distinct responsibilities in the leadership and management of the Judiciary as an arm of Government. 17.The functions of the JSC as set out in Article 172(1) are interalia to:(b)review and make recommendations on the conditions of service of-(i)judges and judicial officers, other than their remuneration; and(ii)the staff of the judiciary;(c)appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament 18.From this provision, it is not in doubt that the recruitment and management of judiciary staff under which category the Claimants fall are vested in the JSC. It is also clear that in discharging his mandate of leadership and management of the Judiciary, the Chief Justice wears many hats. 19.However, as far as recruitment and management of judiciary staff are concerned, it seems to me that the Chief Justice can only legitimately operate in his capacity as chairperson and member of the JSC. In my view, he has no other powers outside the mandate given to the JSC under Article 171 of the Constitution and the [Judicial Service Act, 2011](http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/Judicial_Service_Act_2011.pdf). 20.Counsel for the Claimants submitted that the Chief Justice is joined in these proceedings because he approved recruitment of the Claimants apparently without reference to and approval of the JSC. For this reason, Counsel sought to apportion some specific blame to the Office of the Chief Justice. 21.Without determining the appropriateness of the specific actions taken by the Chief Justice and the Chief Registrar of the Judiciary at this stage, the Court finds that all the actions taken by the Chief Justice were taken in his capacity as the chairperson of the JSC and not in any other capacity. 22.Whatever wrong may be assignable to the Chief Justice would be in his capacity as chairperson of the Commission and any such wrong would be well addressed by a claim against the JSC. In my opinion, the fact that the Chief Justice issued communication on letterheads other than that of the Commission or signed off in the name of his other titles of Chief Justice/President of the Supreme Court of Kenya does not alter this fundamental principle. 23.I therefore find no legal basis for joiner of the Chief Justice as a 2nd Respondent in this case. The result is that the Respondents' Preliminary Objection is upheld and the Claimants' claim as against the Chief Justice is struck out. 24.In concluding his submissions, Mr. Muumbi asked the Court to spare the Claimants an order for costs in the event that the Court finds the joiner of the Chief Justice to have been made in error and Mr. Muite told the Court that the Chief Justice would not pursue costs on this score. Each party will therefore bear their own costs in this application. 25Orders accordingly. **DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 31ST DAY OF JANUARY 2014****LINNET NDOLO****JUDGE** In the Presence of:..............Claimants...............Respondents *[JSC]: Judicial Service Commission