- The directions were issued after a court assistant, court administrator and two judicial assistants moved to court seeking clarity on eligibility criteria.
- Vincent Gikunda, Oscar Soi, Frank Megiri and Anthony Oniala had expressed their desire to be elected as office bearers.
Image: The Star
The High Court has temporarily stopped the elections of the Kenya Judicial Staff Association (KJSA) which were to be done on Saturday.
The directions were issued after a court assistant, court administrator and two judicial assistants moved to court seeking clarity on eligibility criteria.
Vincent Gikunda, Oscar Soi, Frank Megiri and Anthony Oniala had expressed their desire to be elected as office bearers and thus presented their interests for nomination for candidacy on various positions.
On May 8, Gikunda wrote to KJSA seeking clarification on the eligibility criteria for members of the association seeking to be validly nominated for participation in the election.
He received his reply via a letter dated May 11, 2024, noting that the elections would be conducted pursuant to the Rules and Regulations for Conducting National Office Elections 2024.
The Rules and Regulations were adopted during the AGM held on December 16, 2023.
Being aggrieved by the decision, Gikunda sought an audience with the Election Board claiming that the retrospective application of the elections rules and regulations went against the principle of reasonability and legitimate expectation of the fair administrative action.
According to the petitioner's lawyer Shadrack Wambui, the board did not acknowledge the complaint nor invite the petitioner for the requested meeting.
On May 14, they received individual notifications rejecting their nomination, on grounds that they did not meet eligibility criteria to wit the attendance of three AGMs held on June 25, 2022, February 25, 2023 and December 16, 2023.
Still aggrieved, they appealed against the decision of the election board to the Dispute Resolution Committee of the Association.
The Dispute Resolution Committee upheld the decision of the election board barring the petitioners from participating as candidates in the 2024 elections.
After exhausting the options, the petitioners moved to the Constitutional and Human Rights Division of the High Court seeking to intervene and determine the question of whether the retrospective application of Section 3(1) KJSA Rules &23 Regulations for Conducting National Office Elections 2024 in the current elections is unilateral, unfair and a contravention of Articles 10, 27, 28, 36, 38 and 47 of the Constitution.
The Court heard that the respondents violated the Petitioners' right to Fair Administrative Action by disqualifying members from vying based on Rule 3.1 of the Election Rules.
"The contestants ought to have been notified in advance ahead of the nomination process that the applicable rules would be the Rules and Regulations for Conducting National Office Elections 2024 and not 2013," the court was told.
The impugned Rule 3.1(a) states that "A candidate should she/he must have been an active member for no less than a period of three years and attended at least three AGMs either physical or virtual".
The Court also heard that the respondents were in violation of Article 10 of the Constitution to wit the respect to the rule of law, dignity and principle of nondiscrimination for it has opted to treat its founding constitution as an inconvenience to the detriment of the Petitioner.
The respondents in the case include KJSA, KJSA election board, Boru Wako, Evanson Ngigi, Andrew Motari and Linet Murugi.
The petitioners sought a declaration that the retrospective application of Rule 3.1a of the Rules and Regulations for Conducting National Office Elections 2024 after the opening of the nomination process is an unreasonable, unprocedural exercise of administrative action.
They also sought a declaration that the Dispute Resolution Committee is improperly constituted and a violation of Article 21 of the Kenya Judicial Staff Associations Constitution as read with Article 47 of the Constitution of Kenya.
Further, they want the court to declare that the General Meeting held on December 16, 2023, was not an Annual General Meeting pursuant to Article 15 (ai) of the KJSA Constitution.
The petitioners also sought an order directing the KJSA Election Board, to clear them as validly nominated, having satisfied the requirements under Article 11D of the Association’s constitution and not the impugned Rule 3.1 of the Rules and Regulations for Conducting National Office Elections2024.