Court declines to block judges from electing representative to the JSC
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What you need to know:
- Justice Kamau was only female candidate who submitted her candidature but her application was rejected because the term of the female representative for KMJA was yet to expire.
- The association is represented at the JSC by High Court judge David Majanja, whose term has come to an end and Ms Evelyne Olwande, a magistrate, whose term ends in January 2026.
A judge has dismissed a petition seeking to stop judges of the High Court from electing a male representative to the Judicial Service Commission (JSC).
Justice Chacha Mwita dismissed the case filed by fellow High Court judge Justice Jacqueline Kamau stating that the election rules were in conformity to constitution, as they state that the association must be represented at the JSC by a male and a female.
Justice Kamau argued that the Kenya Magistrates and Judges Association (KMJA) election rules were discriminatory and unconstitutional, as they have the effect of permanently excluding women judges from representing the association at the JSC.
Judge Mwita, however, said the decision to block Justice Kamau from contesting in the elections on May 25, did not violate her rights because the term of a female representative for KMJA was yet to expire.
“A purposive reading of Article 171(2) (d) of the constitution shows that the association must be at any time be represented by one high court judge and one magistrate, one woman and one man. The constitution does not contemplate the possibility of two women or two men representing the association," the judge said.
The judge said where the words in the constitution are precise and unambiguous, they should be given the literal meaning and it was not disputed that it was the term of the male representative that had expired.
Justice Kamau was only female candidate who submitted her candidature but her application was rejected because the term of the female representative for KMJA was yet to expire.
The association is represented at the JSC by High Court judge David Majanja, whose term has come to an end and Ms Evelyne Olwande, a magistrate, whose term ends in January 2026.
Justice Kamau argued that the interpretation that requires that the High Court judge representative be male and future magistrate representative be female, was erroneous and unconstitutional.
“Consequently, the Respondent’s decision that the association can only elect a male Judge to replace the outgoing male representative, is informed by a deliberate misunderstanding of the constituency that the Petitioner was seeking to represent. The resulting decision undermines the principles of fair representation and unjustifiably discriminates against female judges,” she said through her lawyer Mr Kamau Karori.
The members of KMJA comprise of judges of the High Court and courts with the status of the High Court, magistrates, Kadhis and deputy registrars.
Article 171(4) of the constitution provides that members of the JSC, apart from the Chief Justice and the Attorney- General, shall hold office for a term of five years and shall be eligible to be nominated for one further term of five years.
When the Commission was first constituted in 2010, Justice Isaac Lenaola, then a High Court judge was elected to represent judges but he served for three years while Justice Emily Ominde was elected to represent magistrates and served for two terms of five years each.
Justice Aggrey Muchelule served as judges’ representatives from 2013 to 2019 and thereafter, he was succeeded by Justice Majanja, was sworn in on May 15, 2019.
In April, KMJA notified members of the upcoming vacancy and Justice Kamau submitted her candidature, having been endorsed by 29 judges.
