Judge revises decision, declares NMS legit

Judge Hellen Wasilwa delivers a judgment in which she sentenced doctors union officials  to one month in jail in 2017.


Photo credit: Nation Media Group

What you need to know:

  • LSK President Nelson Havi said on social media that he was so shocked by the judge that he burst out laughing.
  • LSK Council member Esther Ang’awa lamented that Kenya had no shortage of surprises.

On June 18, High Court judge Hellen Wasilwa ruled that the transfer of functions by Nairobi County to Nairobi Metropolitan Services (NMS) was illegal and unconstitutional.

Then on Thursday she revised her ruling and declared NMS properly constituted, saying she arrived at the decision after “perusing further documents by NMS.”

The move stunned many, with lawyers expressing shock and consternation, noting that the matter was already out of her hands and should therefore be decided by a higher court.

LSK President Nelson Havi said on social media that he was so shocked by the judge that he burst out laughing.

“How? Some things cannot be explained even when you get enraged…” Mr Havi tweeted.

LSK Council member Esther Ang’awa lamented that Kenya had no shortage of surprises.

“Let’s merge High Court and Court of Appeal. Let’s always apply to High Court to rethink its judgments and save judicial time and resources,” Ms Ang’awa tweeted.

Presidential state

Philip Blak, another lawyer, said, “It is now evident that Kenya is a presidential state and the Judiciary is powerless and complicit. I think at this extent the Executive should just be merged with the Judiciary.”

In her orders issued on June 18, the judge made a declaration that the creation of the NMS was in violation of the law and the Constitution and gave 90 days for the agency to be established in accordance with the law and its instrument of establishment be made.

But on Thursday, she ruled:  “...I find that the declaration of illegality of the Nairobi Metropolitan Services as created is now lifted.”

Activist Okiya Omtatah had sued NMS and three others challenging the creation of NMS, the transfer of functions to the body and the manner in which officers were transferred to serve in it.

Mr Omtatah argued that the transfer of 6,052 employees to NMS was unlawful, as it could not have been done without the assent of the Nairobi County government through the County Public Service Board, and it did not comply with section 73(4) and 73(5) of the County Governments Act.

This is not the first time that the judge has been on the spot.

Administering justice

In 2017, while serving in the Employment and Labour Court, she was criticised for her handling of a doctors’ strike after she jailed representatives of doctors, Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU), for one month for contempt of court.

Later in November 2019, she quashed the appointment of Esther Murigi and Tiyah Galgalo to the national Land Commission, then, in an interesting twist, she said that although the selection panel was incompetent, their incompetence did not affect the outcome of the process.

Justice Wasilwa is currently a Puisne Judge working at the Employment and Labour Relations Court and served as court registrar for five years before her appointment as judge in July 2012.

With more than 30 years of experience in administering justice in Kenya, having signed the Roll of Advocates in September 1989, she joined the judiciary as a magistrate in 1990 and has risen through the ranks to be a High Court judge.

She is a former president of the Kenya Judges Welfare Association and currently Vice-President of the International Association of Women Judges, Kenya Chapter.

engisesa@gmail.com