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ELRCDismissed· [2020] KEELRC 18 (KLR)

Sammy Osundu Likaroni – Interested Party (On Behalf of Senior Court Assistants – JSG.7) Formerly (Senior Clerical Officers) and all other affected Judicial Staff v Judicial Service Commission & 3 others [2020] KEELRC 18 (KLR)

High Court of Kenya
16 December 2020
MMM. Mbaru
2,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed anyone can sue to defend others' constitutional rights, so the JSC recruitment challenge will proceed to full trial.

What this practically means

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Executive summary

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The petitioner, a non-employee of the judiciary, filed a petition on 13th November 2020 challenging the criteria used by the respondents, including the Judicial Service Commission, in conducting interviews of Court Administrators between 21st October and 11th November 2020, sued on behalf of the aggrieved Senior Court Assistants cadre and other judicial staff. The respondents filed a Notice of Preliminary Objection dated 19th November 2020 seeking to strike out the petition on the ground that the petitioner lacked locus standi under Article 22(2) of the Constitution, since he was not a judiciary employee and no judicial officer had personally presented a complaint over employment matters, which they characterised as private law in personam matters. The respondents further invoked the Anarita Karimi Njeru principle, contending the petition lacked precision as to the rights infringed. The petitioner, relying on Articles 22, 258 and 159 of the Constitution, the Employment Act, 2007, Sollo Nzuki and Mumo Matemu, argued he acted in the public interest and on behalf of staff who feared victimisation. The court framed a sole issue: the petitioner's standing. Applying the broad approach to standing in public interest litigation endorsed in Sollo Nzuki and Priscilla Nyokabi, and the standard in Mumo Matemu that Article 258 governs locus standi, the court held the petitioner met the threshold of Articles 258 and 22, whether acting on behalf of others or in the public interest. The merits were left for full trial. The preliminary objections were dismissed with costs following the cause.

Key legal issues

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01

Locus standi of a non-employee to petition on behalf of aggrieved judicial staff

Holding

The petitioner satisfies the standing threshold under Articles 258 and 22 of the Constitution, having anchored the petition in the public interest and on behalf of a group or class of persons who allegedly cannot act in their own name for fear of victimisation.

Reasoning

The court applied Article 258, which permits proceedings by any person acting in their own interest, on behalf of another who cannot act in their own name, as a member of or in the interest of a group or class, or in the public interest. Relying on Sollo Nzuki and Mumo Matemu, the court adopted a broad approach to standing in public interest litigation, holding that the petitioner, who alleged actual and threatened violation of the Constitution, could not be faulted for instituting the proceedings despite not being a judiciary employee.

p. 4
02

Precision in framing constitutional petitions (Anarita Karimi Njeru principle)

Holding

The court endorsed the requirement that a constitutional petition set out with reasonable precision the complaints, the provisions infringed and the manner of infringement; the petitioner's citation of the constitutional and Employment Act provisions was noted in this regard.

Reasoning

Relying on Patrick Okoth Otieno and Anarita Karimi Njeru, the court reiterated that pleadings give fair notice and define the dispute, and that the reasonable-precision rule is an extension of the principle that cases be dealt with justly. The petitioner had cited the specific constitutional articles and Employment Act sections underpinning the petition.

p. 3

Legal principles established

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  • Under Article 258 of the Constitution, any person acting in their own interest, on behalf of another, in the interest of a group or class of persons, or in the public interest may institute proceedings claiming that the Constitution has been contravened or is threatened with contravention; the petitioner enjoys special standing under that Article.
  • A party approaching the court on a constitutional matter must set out with a reasonable degree of precision the complaints, the provisions said to be infringed, and the manner of infringement (the Anarita Karimi Njeru principle).
  • Locus standi is a totally different matter from the merits of a petitioner's case.

Court orders

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  1. 1.The Preliminary Objections dated 19th November, 2020 by the respondents are found without merit and dismissed
  2. 2.Costs shall follow the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22(1), (2)(a), (b), (c), (d)
  • Constitution of Kenya, 2010Article 258(1), (2)(a), (b), (c), (d)
  • Constitution of Kenya, 2010Articles 19, 20, 23, 33, 41, 47, 48, 50, 159, 161, 171, 172, 236, 251
  • Employment Act, 2007Section 5(1), (2), (3)(b), 87(1) and (2)

Cases cited (5)

  • Sollo Nzuki versus Salaries and Remuneration Commission & 2 others
    [2019] eKLR
  • Mumo Matemu versus Trusted Society of Human Rights Alliance & others
    Civil Appeal No. 290 of 2012
  • Anarita Karimi Njeru versus Republic
    [1979] eKLR
  • Patrick Okoth Otieno & another versus Director of Public Prosecution
    [2019] eKLR
  • Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission
    Nairobi HCCP No. 1 of 2010
Jurisdiction invoked
Articles 22 and 258 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sammy Osundu Likaroni – Interested Party (On Behalf of Senior Court Assistants – JSG.7) Formerly (Senior Clerical Officers) and all other affected Judicial Staff v Judicial Service Commission & 3 others [2020] KEELRC 18 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/18/eng@2020-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.