A Labour Court has declined to stop the ongoing interviews for High Court Judges saying the petitioner failed to prove that the Judicial Service Commission commenced the process in a manner that's not consistent with the constitution.
Justice Byrum Ongaya in dismissing the application filed by Advocate Nelson Havi said for the court to interfere, the petitioner must have shown that JSC is proceeding in a manner that violates the constitution.
Havi filed the case last month seeking to stop the interviews for several reasons.
One of them was that the JSC violated the constitution by allowing the outgoing JSC commissioner Macharia Njeru to participate in the making of major decisions on grounds that he lacks the representative legitimacy and mandate of advocates.
He argued that Njeru ceased having the representative legitimacy and mandate of advocates to the commission following the election of Omwanza Ombati who is scheduled to assume office on May 14.
Havi also argued that JSC contravened the law by failing to ensure inclusiveness and equality in the shortlisting by excluding a majority of applicants with less than 15 years of experience.
His other reason for having the interviews stopped was because the recruitment process was allegedly conflicted.
He supported this argument by telling the court that 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.
But Justice Byrum said Njeru is not barred by the constitution from performing his work as a member of the JSC "in sunset days of his tenure".
He said Njeru is properly in office as a member of the JSC as his five year tenure has not lapsed.
"His tenure expires in a month hence there's no vacancy in the commission in regards to the male representative to the JSC," said the Judge.
He noted that Omwanza being the duly next elected representative is due to replace Njeru on May 12.
On the minimum experience, the Judge said JSC is entitled to consider the minimum experience of 10 years and other qualifications.
"Havi has not shown that the consideration on the factor of experience of at least ten years has been discriminately invoked by JSC or not applied objectively," said the Judge.
Regarding the first candidate being a partner at Macharia Mwangi and Njeru advocates, the Judge said Njeru had already admitted that the candidate is his associate and had made this known.
He added that if the conflict was proven, it would only impair the recruitment and shortlisting of the first candidate that is Amimo.
"It doesn't amount to an established good basis to granting the orders sought which would affect the entire ongoing recruitment process," said the Judge.
