Judges lose case on lost employment

Former Industrial Court judges who declined to reapply for their jobs before the Judicial Service Commission (JSC) following the promulgation of the Constitution in 2010 have failed to get their jobs back.

High Court Judge Mumbi Ngugi said in her ruling that the judges had failed to utilise the only option made available to them, and they cannot therefore turn around to claim that their rights had been violated.

“Their option was what was offered to them, but which they declined to take up, to apply to the JSC and be interviewed for the position of judges of the Industrial Court. This would have been in accordance with the requirements of competitiveness, transparency and accountability required by the constitution,” said Justice Ngugi.

The petitioners, Charles Pius Chemmuttut, Paul Kipsang Kosgei, Steward Mwachin Madzayo and Edwin Kiiru Mukunya, were prior to the promulgation of the new Constitution, serving as judges of the Industrial Court in accordance with the provisions of the Labour Institutions Act.

They filed the petition alleging violation of their constitutional rights in that they were not permitted to transit from their positions as judges of the former Industrial Court to judges of the Industrial Court established under the new Constitution.

Lady Justice Ngugi said the promulgation of the 2010 Constitution brought with it major changes in the structure and composition of many institutions in Kenya, including the Judiciary.

One of the changes was the establishment of a new Industrial Court with the status of a High Court. Essentially, the Constitution and the Industrial Court Act brought the old Industrial Court, which was a subordinate court established under the Trade Disputes Act, to an end.

VETTING PROCESS

The petitioners had argued that they should have been subjected to the vetting process before the Judges and Magistrates Vetting Board (JMVB) like other judges of the High Court.

However, Lady Justice Ngugi said they could not have been vetted given that their court was a subordinate court at the time and that the vetting process was intended to establish the suitability of judges of the superior courts to continue serving as such, as well as for magistrates whose courts were still part of the hierarchy of courts.

“As the Constitution contemplated the end of the Industrial Court in which the petitioners were serving, which was a tribunal inferior to the High Court, and the establishment of an Industrial Court with the status of a High Court, the petitioners could not be considered as judges who were liable to be subjected to the vetting process,” Judge Ngugi.

She, however, said that the petitioners are entitled to such entitlements by way of remuneration and allowances as were outstanding up to the date of the determination of their positions as judges of the defunct Industrial Court.