Lawyer sues JSC over 'unfair' conditions for resident magistrate post

A lawyer has sued the Judicial Service Commission (JSC) for preventing inexperienced advocates from applying for the 50 resident magistrate posts advertised in January.

Ms Nadi Boru Mohammed wants the court to quash the JSC's prescription of three years of post admission experience as a prerequisite for consideration and appointment.

She wants the court to stop the recruitment, shortlisting, interviewing, induction and employment of the 50 people on the basis of this requirement.

Ms Mohammed, together with Nairobi-based legal aid group, Sheria Mtaani na Shadrack Wambui, argue that the requirement is illegal, unreasonable, irrational, a breach of the Constitution and against the legitimate expectation.

She is among those locked out since she was admitted to the bar as an advocate of the High Court on July 20, 2020 and therefore took a Practicing Certificate for that year.

In the advertisement dated January 27, the JSC indicated that those interested in filling the 50 slots should have at least three years’ experience since being admitted as advocates.

The employer said the experience can be in the private sector or another kind of employment.

In their petition filed at the Labour court, however, the lawyer and the organisation say, “The requirement has no basis in law and thus amounts to discrimination, contrary to Article 27 (4) of the Constitution. Young advocates with less than three years’ experience post admission are obviously unreasonably locked out from applying."

Service act

Ms Mohammed says the requirement for has no basis in law as it is not contained in Section 32(2) of the Judicial Service Act, which states the prerequisite conditions.

The Act says a person shall not qualify for appointment as a magistrate unless the person is an advocate of the High Court of Kenya, has high moral character, integrity and impartiality and demonstrable management skills.

The law also says the applicant should have proficiency in computer applications and no pending complaints at the Advocates Complaints Commission or the disciplinary committee.

“The additional requirement set by the JSC is an overreaching and overstepping of its constitutional mandate and is thus tantamount to a backdoor amendment of the law,” says Ms Mohammed.

She adds, “The unilateral decision … is beyond the dictates of the Constitution, Judicial Service Act and ultimately the rule of law.”

The lawyer further argues that the requirement is meant to unfairly limit the youth when it comes to economic and employment opportunities.

“It puts young advocates in dismay as their hopes to be appointed as magistrates after being admitted as advocates of the High Court of Kenya is abruptly cut,” says Ms Mohammed.

According to her, it is irrational for the JSC to presume that advocates with less than three years’ experience are not competent enough to serve as resident magistrates.

JSC’s defence

The JSC wanted the court to strike out the case on grounds that it has no authority to hear and determine the issues raised by the lawyer.

Through a preliminary objection, the commission said this is not an employment and labour dispute as no employer- employee relationship exists between the lawyer and the commission.

But Justice Nduma Nderi rejected the application saying it lacked merit.

The judge said there is no doubt that magistrates unlike judges and independent commissioners are employees in public service.

He added that the Labour court has jurisdiction to hear and determine disputes arising from recruitment, appointment and removal of magistrates, as well as disciplinary matters.

Following the suit last week, the parties are expected to file written submissions and select a hearing date.

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