Former Law Society of Kenya President Nelson Havi has made true his threat to challenge the interviews for the recruitment of Judges of the High Court of Kenya set for next month.
In an application filed at the Milimani Employment and Labour Relations Court, Havi wants the court to cancel the scheduled interviews called by the Judicial Service Commission (JSC) until after the assumption to office of Samson Omwanza Ombati as the Law Society of Kenya (LSK) male representative to the JSC.
"Pending and determination of this application, a conservatory order be issued suspending the implementation of the decision of the JSC communicated on March 7, 2024, notifying the public of shortlisted candidates for interviews for the public office of the Judge of the High Court from April 3 to 30,2024," Havi states in court papers.
The vocal lawyer argues that Chief Justice Martha Koome's led commission has contravened Article 10 of the constitution in shortlisting candidates for the position of High Court Judges by allowing the outgoing JSC commissioner Macharia Njeru to participate in the making of major decisions at the commission since he lacks the representative legitimacy and mandate of Advocates.
"The JSC is acting against the rule of law by allowing Njeru to participate in the making of a major decision of the commission without the elective representative mandate of Advocates to the commission following the election of Samson Omwanza Ombati on February 29, 2024," Havi stated.
He adds that the shortlisting of candidates for interviews subsequent to the election of Omwanza violates his right under Article 41 of the constitution to form, join or participate in the activities and programmes of the LSK at the JSC.
"The commission had violated the law by undertaking the shortlisting of candidates for interviews for the public office of Judge of the High Court of Kenya in disregard of the principles of good governance, integrity, transparency and accountability which preclude Njeru from participating in the making of major decisions of the JSC during the transition period following the election of Omwanza," the court papers state.
The former LSK President is opposed to the interviews stating that the JSC has denied him the right to be represented in the making of decisions of the Commission by an elected representative of his choice.
"The commission has violated the constitution by denying me the right to public participation in the making of the decision by the JSC in respect to the shortlisting of candidates for interviews for the public office of Judge of the High Court of Kenya through our elected male representative to the commission," Havi contends.
Further, the lawyer faults JSC for discriminating against the majority of the applicants who had applied for High Court Judges interviews with over 10 years of experience but below 14 years of experience contrary to the requirements of Articles 27 and 166 of the constitution.
"JSC has contravened the constitution by failing to ensure inclusiveness and equality in the shortlisting of candidates for interviews for the public office of Judge of the High Court of Kenya by excluding a majority of applicants of below 15 years experience," Havi argued.
Havi is also opposed to the recruitment process saying it is conflicted since the first candidate namely Adelaide Akong'a Amimo shortlisted for the interviews on April 3, 2024, is Commissioner Njeru's partner at Macharia-Mwangi and Njeru Advocates.
In his pleadings, the lawyer wants the court to quash JSC's notice dated March 7, 2024, which includes a hundred shortlisted individuals by JSC having advertised 20 vacancies for High Court Judges.
On March 8, JSC published 100 shortlisted candidates after advertising 20 vacancies for High Court Judges.
"Recruitment of Judge of the High Court of Kenya. 305 Kenyans applied for the 20 advertised vacancies. JSC shortlisted 100 candidates. The interviews will be conducted between 3rd-30th April 2024," the JSC said.
The Commission further noted that it will conduct the interviews at CBK Towers 13th Floor, Harambee Avenue Nairobi.
Among those that have been shortlisted for interviews are Magistrates Elizabeth Juma, Benson Nyaga, Esther Kimilu, Eunice Nyutu, Francis Andayi, Liza Gicheha Stellah Atambo Thomas Nzyoki, Wendy Micheni, Victor Wakumile, Emily Ominde and Joyce Gandani
Prosecutors shortlisted for the judge positions included Alexander Muteti and James Warui.
Others are lawyers Agnes Wairimu, Alice Bet, Andrew Bahati, Beatrice Muniano, Bernard Akang'o
A High Court judge enjoys benefits including a gross monthly remuneration package ranging from Ksh750,000 to Ksh1,029,691.
The judge is mandated with unlimited original jurisdiction in both criminal and civil matters and jurisdiction to hear any question respecting the interpretation of the Constitution.
