(Cesc Nor HRCRETINNG/2024 35 Blowe TT : 1 Annexture 10.00 2 Supporting Afidavit 1 75.00 3 Petition 1 6000.00 4 Application/Notice of Motion 1 250.00 5 Cortificate of Urgency 1 550.00 ‘Total : Ksh.6,885.00 2024-03-20 10;26:08+03 Ch 1-MPESA SCKBLITIMG ‘Total Payment : KES 6,885.00 ( Six Thousand Fight Hundred and Figthy Five Only ) CTS Invoice REF : ESD6EUBK Issued By Sym icc aacHAVI AND COMPANY] ADVOCATES og Om. 20g 28 2.4, REPUBLIC OF KENYA, IN THE EMPOYMENT. PETITION NOE034 OF 2024 IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION OF KENYA IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND. FUNDAMENTAL FREEDOMS UNDER ARTICLES 1, 2,10, 19,21,27, 38, 41, 73 131, 171 AND 232 OF THE CONSTITUTION OF KENYA, BETWEEN NELSON HAVI. -VERSUS- JUDICIAL SERVICE COMMISIO 1ST RESPONDENT MACHARIA NJERU “"2NORESPONDENT CERTIFICATE OF URGENCY. L_NELSON_HAVI who has the conduct of this matter on behalf of the Petitioner/ Applicant certify that the Notice of Motion filed herewith is urgentand ‘ought to be heard and cletermined expeditiously for the following reasons 1. On13% October, 2023 the 1* Respondent invited applications for 20 vacancies for the public office of Judge of the High Court of Kenya 2. On29% February, 2024 Samson Omwanza Ombati was elected by members of the Law Society of Kenya as their male representative to the I* Respondent. 3. The elective representative mandate of the 2%! Respondent to the 1 Respondent ceased upon the election of Samson Omwanza Ombati on 298 February, 2024. 4. In any event, the 2s Respondent being a holder of public office and/or state officer was obliged to proceed on terminal leave 30 days before the 5% anniversary of his swearing-in, being on 14% April, 2024 pursuant to therequirements of Section E 12 of the Human Resource Policies and Procedures ‘Manual for the Publie Service, 2016, 5, On 7 March, 2024 the 1* Respondent issued a notice which was published in the Daily Nation and The Standard of 8 March, 2024 notifying the public of the shortlisted candidates and dates of interviews for candidates forthe public office of Judge of the High Court of Kenya from 3+ to 30% Apri, 2024. 6. The first candidate shortlisted for interview on 34 April, 2024 is the 2nd Respondent's partner at Macharia-Mwangi & Njeru Advocates. 7. Armajority of the candidates shortlisted are above 15 years experience whilst a majority ofthe applicants rejected are between 10 years experiance and 14 years experience. 8. For instance, for the first 20 shortlisted candidates only 1 is of 14 years ‘experience with none below that practice years limit, On the other hand, for the first 20 rejected applications 7 are between 10 years and 14 years practice years limit. 9. On 8% March, 2024 the Petitioner requested the 1 Respondent to cancel the interviews for candidates for the public office of Judge of the High Court of Kenya until after the assumption into office of Samson Omwanza Ombati on 114 May, 2024 10.0n 154 March, 2024 the 1* Respondent notified the Petitioner that it will proceed with the interviews for candidates for the public office of Judge of the High Court of Kenya with the 2! Respondent as male representative of the Law Society of Kenya to the I Respondent notwithstanding the protestation by the Petitioner. 11. There is precedent in the commonwealth for the good governance principle that upon an election, the outgoing officer is constituted a caretaker of the incoming officer, the former's powers limited to the day-to-day running of the administrative affairs of the office, leaving the making of major decisions in respect to the office to the latter. The principle applies to the 24 Respondent and Samson Omwanza Ombati12.The Petitioner has filed the Petition herein challenging the actions and decisions of the 1* and 2» Respondents. 13. The actions of the 2! Respondent on the recruitment of the Chief Registrar of, the Registrar contained in the communication made to members of 1s Respondent on 19! March, 2024 demonstrates a determination on the part of the 2n! Respondent to pursue personal interests within the trensition period, a ‘conduct that is bound to be repeated if he is not prohibited from holding himself out as a representative of Advocates to the I Respondent 14. The actions of the 1* and 2%! Respondents as set out in the Petition are ‘manifestly unconstitutional and unlawful, are prejudicial to the interests of the People of Kenya in general and the Advocates in particular, and ought to be halted pending the determination of the questions raised in the Petition herein, 15.1 is just and proper that the Notice of Motion be certified urgent, be heard. expeditiously and the orders sought therein be granted in the interim pending, the hearing of the Petition, to prevent a further denial, violation or infringement of the rights of the People of Kenya in eee DATED at NAIROBI this 20* day of March, 2024. AW aR HAVE & COMPANY ADVOCATES FOR THE PETITIONER DRAWN & FILED BY: HAVI & COMPANY ADVOCATES PARK SUITES (3° FL, SUITE NO. 4) PARKLANDS ROAD (Opp. PARKLANDS POST OFFICE) POBOX 38422 - 00623, NAIROBI (REF: HA/MS/008/2024) Email: [email protected]‘TO BE SERVED UPON: 1. JUDICIAL SERVICE COMMISSION (CBK PENSION TOWERS, 13" FLOOR HARAMBEE AVENUE P.O BOX 40048-00100 NAIROBI 2. MACHARIA NJERU C/O MACHARIA-MWANGI & NJERU ADVOCATES, ACK GARDENS ANNEX, 6" FLOOR NGONG AVENUE P.O BOX 10627-00100 NAIROBIHAV AND COMPANY| ADVOCATES Find x20 Lealaeet. REPUBLICOF KENYA | 3.51 INTHE EMPOYMENT AND LABOUR RELATIONS COURT AT.NAIR PETITION NO E024 OF 2024 [cout si os IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION OF KENYA IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 1, 2, 10, 19,21, 27,38, 41, 73 131, 171 AND 232 OF THE CONSTITUTION OF KENYA BETWEEN NELSON HAVI. -VERSUS- JUDICIAL SERVICE COMMISION. /MACHARIA NJERt .1T RESPONDENT 2ND RESPONDENT. NOTICE OF MOTION (Under Articles 22 and 23 of The Constitution of Kenya, 2010 and Rules 32(3) of, ‘The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedures Rules, 2013, Section 66 of the Civil Procedure Act Cap 21 of the Laws of Kenya and the inherent powers of the Court) ‘TAKE NOTICE that this Honourable Court will be moved on the day of 2024 at 9.00 O'clock in the forenoon or so soon thereafter as ‘Counsel forthe Petitioner/ Applicant can be heard on an application for ORDERS THAT: 1. This Application be and is hereby certified as urgent and heard ex parte in the first instance. 2. Pending the hearing and determination of this Application, a conservatory order be and is hereby issued suspending the implementation ofthe decision of the 1* Respondent communicated on 7 March, 2024, notifying the public of shortlisted candidates for interviews for the public office of Judge of the Figh Court of Kenya from 3+ to 30% April, 20243. Pending the hearing and determination of this Petition, a conservatory order be and is hereby issued suspending the implementation of the decision of the 1 Respondent communicated on 7% March, 2024, notifying the public of shortlisted candidates for interviews for the public office of Judge of the High Court of Kenya from 3+! to 30% April, 2024 4, The costs of this Application be provided for. ON THE GROUNDS THAT: 1, On 13% October, 2023 the 1 Respondent invited applications for 20 vacancies for the public office of Judge of the High Court of Kenya, 2. On29 February, 2024 Samson Omwanza Ombati was elected by members of the Law Society of Kenya as their male representative to the T+ Respondent, 3. The elective representative mandate of the 2% Respordent to the 1 Respondent ceased upon the election of Samson Omwanzz Ombati on 29% February, 2024. 4. In any event, the 2»! Respondent being a holder of public office and/or state officer was obliged to proceed on terminal leave 30 days before the 5 anniversary of his swearing-in, being on 14! April, 2024 pursuant to the requirements of Section E12 of the Human Resource Policies and Procedures ‘Manual for the Publie Service, 2016. 5. On March, 2024 the 1* Respondent issued a notice which was published in the Daily Nation and The Standard of 8% March, 2024 notifying the public of the shortlisted candidates and dates of interviews for candidates for the public office of Judge of the High Court of Kenya from 3 to 30% April, 2024 6. The first candidate shortlisted for interview on 3 April, 2024 is the 2»! Respondent's partner at Macharia-Mwangi é& Njeru Advocates, 7. A majority of the candidates shortlisted are above 15 years experience whilst a ‘majority of the applicants rejected are between 10 years experiznce and 14 years experience,8, For instance, for the first 20 shortlisted candidates only 1 is of 14 years ‘experience with none below that practice years limit. On the other hand, for the first 20 rejected applications 7 are between 10 years and 14 years practice years limit. 9. On 8! March, 2024 the Petitioner requested the 1* Responéent to cancel the interviews for candidates for the public office of Judge of the High Court of Kenya until after the assumption into office of Samson Omwanza Ombati on 14! May, 2024. 10.0n 15% March, 2024 the 1* Respondent notified the Petitioner that it will proceed with the interviews for candidates for the public ofixe of Judge of the High Court of Kenya with the 2% Respondent as male representative of the Law Society of Kenya to the 1 Respondent notwithstanding the protestation by the Petitioner. 11. There is precedent in the commonwealth for the good governance principle that upon an election, the outgoing officer is constituted a caretaker of the incoming officer, the former's powers limited to the day-to-day running of the ‘administrative affairs of the office, leaving the making of major decisions in respect to the office to the latter. The principle applies to the 2»! Respondent and Samson Omwanza Ombati, 12.The Petitioner has filed the Petition herein challenging the actions and. decisions of the 1* and 2»! Respondents. 13. The actions of the 2» Respondent on the recruitment of the Chief Registrar of the Registrar contained in the communication made to members of 1 Respondent on 19% March, 2024 demonstrates a determination on the part of the 2n! Respondent to pursue personal interests within the transition period, a ‘conduct that is bound to be repeated if he is not prohibited from holding himself out as a representative of Advocates to the 1 Resporsient, 14.The actions of the 1 and 24 Respondents as set out in the Petition are manifestly unconstitutional and unlawful, are prejudicial to the interests of the People of Kenya in general and the Advocates in particular, and ought to be halted pending the determination of the questions raised in the Petition herein.15.1t is just and proper that the Notice of Motion be certified urgent, be heard. expeditiously and the orders sought therein be granted in the interim pending the hearing of the Petition, to preventa further denial, violation or infringement of the rights of the People of Kenya in general and the Advocates in particular. WHICH APPLICATION is further supported by the Supporting Affidavit filed herein and duly sworn by NELSON HAVI the Petitioner herein and on such other or further grounds as may be adduced at the hearing hereof. DATED at NAIROBI this 20% day of March, 2024, HAVI & COMPANY b) ADVOCATES FOR THE PETITIONER DRAWN & FILED B HAVI & COMPANY ADVOCATES PARK SUITES (3° FL, SUITE NO. 4) PARKLANDS ROAD (Opp. PARKLANDS POST OFFICE) P.O BOX 38422 - 00623, NAIROBI (REF: HA/MS/008/2024) Email: [email protected] ‘TO BE SERVED UPON: 1, JUDICIAL SERVICE COMMISSION CBK PENSION TOWERS, 13" FLOOR HARAMBEE AVENUE P.O BOX 40048-00100 NAIROBI2. MACHARIA NJERU C/O MACHARIA-MWANGI & NJERU ADVOCATES, ACK GARDENS ANNEX, 6" FLOOR NGONG AVENUE P.O BOX 10627-00100 NAIROBI “I any party served does not appear at the time and place above mentioned. such orders will be made and proceedings taken as the court may think just and expedient”[FAVI_AND COMPANY] ADVOCATES ied On 20.103 [3 62%. REPUBLIC OF KENYA y._S64 : IN THE EMPOYMENT AND LABOUR RELATIONS COURT ADNAIROBI. PETITION NO 6034 OF 2024 [aus oxo in, FSRACUSIIS IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION OF KENYA. IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND. FUNDAMENTAL FREEDOMS UNDER ARTICLES 1, 2,10, 19,21, 27, 38, 41, 73, 131, 171 AND 232 OF THE CONSTITUTION OF KENYA BETWEEN -VERSUS- JUDICIAL SERVICE COMMISION, MACHARIA NJERI -1°T RESPONDENT 2Nt RESPONDENT. PETITION ‘TO: THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI The Petition of NELSON HAVI whose address is care of HAVI & CO. ADVOCATES, PARK SUITES, 38° FLOOR, SUITE NO 4, PARKLANDS: ROAD, OPP. PARKLANDS POST OFFICE, P. © BOX 38422-00623, NAIROBI, ‘Tel 0722904905, Email: [email protected] in the Republi: of Kenya is as follows A. PARTIES 1. The Petitioner, Nelson Havi is an Advocate and a member of the Law Society of Kenya, The Petitioner's address of service for purposes of this Petition shall bbe Havi & Company Advocates, Park Suites, 3 Floor, Suite No4, Parklands Road, Opp. Parklands Post Office, P. O Box 38422-00623, Nairobi, Tel (0722904905, Email: [email protected]. 2. The 1* Respondent, Judicial Service Commission is a Commission established under Article 171 of The Constitution of Kenya with the function of promoting, and facilitating the independence and accountability of the judiciary and theefficient, effective and transparent administration of justice as mandated by Article 172 of The Constitution of Kenya, ‘The 2m! Respondent, Macharia Njeru is an Advocate and a member of the Law Society of Kenya. The 2"! Respondent was until 29% February, 2024 the elected male representative of the Law Society of Kenya to the 1® Respondent, an lective public office established under Article 171 (2) (f) of The Constitution of Kenya. |. LEGAL FOUNDATION OF THE PETITION ‘The Constitution of Kenya recognizes at Article 1 thereof the sovereignty of the people with sovereign power being delegated to Parliament, the National Executive, the Judiciary and Independent Tribunals. ‘The supremacy of The Constitution of Kenya is underscored under Article 2 thereof with the directive that The Constitution of Kenya is the supreme law and binds all persons and all State organs. All State officers and Public officers are obligated to comply with national values and principles of good governance set out in Article 10 of The Constitution of Kenya whenever they inter alia, apply or interpret The Constitution of Kenya and apply or interpret any law. These values include the rule of law, public participation, social justice, good governance, integrity, ‘transparency and accountability. Chapter Four of The Constitution of Kenya entrenches the Bill of Rights as an integral part of Kenya's democratic state and the framework for social, economic and cultural policies. Amongst the rights contained in the Bill of Rights are the following: 4a, ‘The recognition under Article 19 (1) andl (3) of The Constitution of Kenya that the Bill of Rights is an integral part of Kenya's democratic state and is. the framework of social, economic and cultural policies and further, that rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State and are suject only to the limitations contemplated in The Constitution of Kenya,b. The command under Article 21 (1) of The Constitution of Kenya that itis a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. c. The right to equality and freedom from discrimination under Article 27 of ‘The Constitution of Kenya which includes the right to equal protectionand equal benefit ofthe law. 4. The right to free, fair and regular elections based on universal suffrage and the free expression of the will of electors for any elective public body or office stablished under The Constitution of Kenya pursuant to Article 38(2) thereof. €. Article 41 of The Constitution of Kenya which entitles every person to the right to fair labour practices including the right to form, jain or participate in the activities and programmes of a trade union f. The right to fair administrative action under Article 47(1) of The Constitution of Kenya which inclucles the right o fair administrative action that is effective, efficient, lawful, reasonable and procedually far. g The right under Article 47(2) of The Constitution of Kenya to be given written reasons for any administrative action likely to adversely affect a right or fundamental freedom. Article 73(2) (b) of The Constitution of Kenya requires objectivity and impartiality in decision making on the part of State officers ard Public officers and in ensuring that their decisions and actions are not influenced by nepotism, favouritism and improper motives or corrupt practices, that there be honesty, in execution of public duties, accountability to the public for decisions and actions made and discipline and commitment in service to the people. Article 232 of The Constitution of Kenya on the Publie Service entrenches values and principles of public service applicable to the respondents as State organs, including but not limited to the following: a. high standards of professional ethics; b. efficient, effective and economic use of resources; 3. responsive, prompt, effective, impartial and equitable provision of services; d. involvement of the people in the process of policy making; . accountability for administrative acts; {transparency and provision to the public of timely, accurate information; g. subject to paragraphs (h) and (9, fair competition and merit as the basis of appointments and promotions; h, representation of Kenya's diverse communities; and i. affording adequate and equal opportunities for appointment, taining and advancement, at all levels of the public service, of- i, men and women; fi. the ‘members of all ethnic groups; and ii, persons with disabilities, 10. Article 171 of The Constitution of Kenya prescribes the composition of the 1s Respondent as consisting of, amongst others, two Advocates, one a woman and fone a man, each of whom has at least 15 years experience, elected by the ‘members of the statutory body responsible for the professional regulation of, Advocates, ‘1. The Law Society of Kenya, a society established under Section 3 of the Law Society of Kenya, Act No 1 of 2014 is the body responsible for the professional regulation of Advocates and representation to the 1+ Respondent through two Advocates elected by members of the Law Society of Kenya, 12. The Human Resource Policies and Procedures Manual for the Public Service, 2016 stipulates at Section E 12 thereof that: ‘An officer who is due for retirement will be entitled in addition to his annual leave, thirty (30) calendar days leave pending retirement. Thi eave must be taken a month preceding retirement or be forfeited. It will neither be commuted for cash nor will the officer qualify for additional leave allowance. [Emphasis added] 18. There is precedent in the commonwealth for the good governance principle that upon an election, the outgoing officer is constituted a caretaker of the incoming officer, the former's powers limited to the day-to-day running of the administrative affairs of the office, leaving the making of major decisions in respect to the office to the latter. The principle applies to the 2 Respondent and Samson Omwanza Ombati14, Article 258 of The Constitution of Kenya entitles every person to institute court proceedings to enforce The Constitution of Kenya on his own behalf or on in the public interest. FACTS OF THE CASE 15.On 13 October, 2023 the 1* Respondent invited applications for 20 vacancies for the public office of Judge of the High Court of Kenya, 116.0n 29% February, 2024 Samson Omwanza Ombati was elected by members of the Law Society of Kenya as their male representative to the I* Respondent. 17.The elective representative mandate of the 2 Respondent to the 1s Respondent ceased upon the election of Samson Omwanza Ombati on 29% February, 2024 16.In any event, the 24 Respondent being a holder of public office and/or state officer was obliged to proceed on terminal leave 30 days before the 5% anniversary of his swearing-in, being on 14 April, 2024 pursuant to the requirements of Section E12 of the Human Resource Policies and Procedures Manual for the Public Service, 2016, 19.On 7 March, 2024 the 1* Respondent issued a notice which was published in the Daily Nation and The Standard of 8% March, 2024 notifying the public of the shortlisted candidates and dates of interviews for candidates for the public office of Judge of the High Court of Kenya from 3+ to 308 April, 2024, 20.The first candidate shortlisted for interview on 3+ April, 2024 is the 2m Respondent's partner at Macharia-Mwangi & Njera Advocates 21. A majority of the candidates shortlisted are above 15 years experience whilst a ‘majority of the applicants rejected are between 10 years experience and 14 years experience. For instance, forthe first 20 shortlisted candidates only 1 is of 14 years experience with none below that practice years limit. On the other hand, {or the first 20 rejected applications 7 are between 10 years and 14 years practice years limit,22.On 8! March, 2024 the Petitioner requested the 1+* Responcent to cancel the interviews for candidates for the public office of Judge of the High Court of Kenya until after the assumption into office of Samson Omwanza Ombati on 14% May, 2024. 23.On 15% March, 2024 the 1s Respondent notified the Petitoner that it will proceed with the interviews for candidates for the public office of Judge of the High Court of Kenya with the 2m! Respondent as male representative of the Law Society of Kenya to the 1* Respondent notwithstanding the protestation by the Petitioner. C CONTRAVENTIONS 24. The 1* and 2»! Respondents have contravened Article 10 (2) (a), (b) and (@) of, ‘The Constitution of Kenya in shortlisting candidates for interviews for the public office of Judge of the High Court of Kenya in the following ways: a. Acting against the rule of law by allowing the 2» Respondent to participate in the making of a major decision of the 1* Respondent without the elective representative mandate of Advocates to the 1* Respondent following the election of Samson Omwanza Ombati on 29% February, 2024; . Denying Petitioner the right to public participation in the making of the decision by the 1 Respondent in respect to the shorllisting of candidates for interviews for the public office of Judge of the High Court of Kenya through, their elected male representative to the 1 Respondent; . Failing to ensure inclusiveness and equality inthe shortlisting of candidates {or interviews for the public office of Judge of the High Court of Kenya by excluding a majority of applicants of below 15 years experience; d. 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_govermance, integrity, transparency and accocntability which preclude the 2%! Respondent from participating in the making of major decisions of the 1 Respondent during the transition period following the election of Samson Omwanza Ombati on 29 February, 2024,25.The 1* and 2"! Respondents have denied the Petitioner the right to be represented in the making of decisions of the 1" Respondent by an elected representative of his choice, and thereby curtailed the Petitioner's enjoyment of the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom contrary to the requirements of Article 20 (1), 2) and (3) as read together with Article 38 (2) (a) of The Constitution of Kenya, 26, The 1+ and 2m Respondents have failed to observe, respect, protect, promote and fulfil the rights and fundamental freedoms of the Petitioner in the Bill of Rights by curtailing the Petitioner's entitlement to elective representation in the making of decisions by the 1 Respondent contrary to the requirements of Article 21 (1) as read together with Article 38 (2) (a) of The Constitution of Kenya, 27. The 18 and 2! Respondents have limited the Petitioner's entitement to elective representation in the making of decisions by the 1* Respondent contrary to the requirements of Article 24 (1) as read together with Article 38 (2) (a) of The Constitution of Kenya. 28. The 1* and 2m! Respondents have discriminated against a majcrity of applicants for the public office of Judge of the High Court of Kenya with over 10 years of experience but below 15 years of experience contrary to the requirements of Article 27 (1), 2), (3), (4) as read together with Article 166 (6) of The Constitution of Kenya. 29, The 1* and 2 Respondents have violated Article 38 (2) (a) of The Constitution of Kenya by imposing the 2»! Respondent in the elective public office of male representative of the Law Society of Kenya in place of the duly elected male representative subsequent to the election of Samson Omwanza Ombati on 29 February, 2024. 30.The 1* Respondent's inclusion of the 2! Respondent in the making of the decision on the shortlisting of candidates for interviews for tke public office of Judge of the High Court of Kenya subsequent to the election of Samson Omwanza Ombati on 29% February, 2024 violates the Petitioner's right under Article 41 (2) (c) of The Constitution of Kenya to form, join or participate inthe activities and programmes of the Law Society of Kenya at the 1* Respondent, 31. The Petitioner's right to fair administrative action under Article 47(1) of The Constitution of Kenya will be infringed if the 2"! Respondent continues Participating in the actions and decisions of the 1* Respondent including but not limited to the interviews for candidates for the public o'fice Judge of the High Court of Kenya from 3 to 30% April, 2024. 32.The 1# and 2%! Respondents’ actions and decisions in the shorlisting of candidates for interviews for the public office of Judge of the High Court of Kenya subsequent to the election of Samson Omwanza Ombati on 29% February, 2024 contravene the values and principles of public service set out in Article 232 of The Constitution of Kenya. 33.qThe 1*tand 2x4 Respondents have violated Article 73 (1) of The Constitution of Kenya as read together with Section 16 of the Leadership and Integrity Act No 19 of 2012 by including the 2»! Respondent in the making of a decision in which the 2"! Respondent is conflicted to the extent that the 1¥ candidate shortlisted for interview is the 2s4 Respondent's partner at Macharia-Mwangi & Njeru Advocates, 34.The 1 and 2%! Respondents have contravened the principles of good _governance in the inclusion of the 2! Respondent in the making ofthe decision, for the shortlisting of candidates for interviews for the publicoffice of Judge of the High Court of Kenya subsequent to the election of Samson Omwanza ‘Ombati on 29 February, 2024 and have thereby violated Aricles 10 (1) () as, read together with Section E 12 of the Human Resource Policies and Procedures Manual for the Public Service, 2016. 35. The Employment and Labour Relations Court has jurisdiction as donated to it by Articles 25, 165, 258 and 259 of The Constitution of Kenya to consider the Petitioner's grievances as set out herein and give reprieve in the manner sought herein below to prevent the ends of justice from being defeated by the Respondents in what is otherwise a clear unlawful enterprise by the Respondents‘YOUR PETITIONER THEREFORE PRAYS THAT: a. An order of certiorari be and is hereby issued calling into this Court and quashing the decision of the 1* Respondent communicated in the notice dated ‘7 March, 2024, notifying the public of shortlisted candidates for interviews for the public office of Judge of the High Court of Kenya, b. Anorder of prohibition be and is hereby issued prohibiting the 2! Respondent from holding himself out and acting as the male representative of the Law Society of Kenya to the 1% Respondent, and further prohibiting the 2»! Respondent from participating in the actions and decisions of the I Respondent including but not limited to the interviews for candidates for the public office of Judge of the High Court of Kenya from 3+! to 30% April, 2024, ©. An order of mandamus be and is hereby issued directing the 1* Respondent to consider and evaluate the applications for candidates for interviews for the Public office of Judge of the High Court of Kenya received subsequent to the notice published by the 1* Respondent on 13% October, 2023, and the consideration and evaluation be undertaken by the 1st Respondent in strict compliance with the requirements of Article 166 (5) of The Constitution of Kenya, 4d. Pending the hearing and determination of this Petition, a conservatory order be and is hereby issued suspending the implementation of the decision of the 1 Respondent communicated on 7 March, 2024, notifying the public of shortlisted candidates for interviews for the public office of Judge ofthe High ‘Court of Kenya from 3 to 30° April, 2024, €. Any other relief and/or order(s) the Honourable Court deems appropriate, justand/or fit to grant. £. The costs of this Petition be provided for. DATED at NAIROBI this 20% day of March, 2024. HAVI & COMPANY ADVOCATES FOR THE PETITIONERDRAWN & FILED B HAVI & COMPANY ADVOCATES. PARK SUITES (3*0 FL, SUITE NO. 4) PARKLANDS ROAD (Opp. PARKLANDS POST OFFICE) P.O BOX 38422 - 00623 NAIROBI (REF: HA/MS/008/2024) [email protected] ‘TO BE SERVED UPON: 1. JUDICIAL SERVICE COMMISSION (CBK PENSION TOWERS, 13"! FLOOR HARAMBEE AVENUE P.O BOX 40048-00100 NAIROBI 2. MACHARIA NJERU C/O MACHARIA-MWANGI & NJERU ADVOCATES ACK GARDENS ANNEX, 6" FLOOR NGONG AVENUE P.O BOX 10627-00100 NAIROBI 10REPUBLIC OF KENYA IN THE EMPOYMENT AND LABOUR RELATIONS, PETITION NO £039 OF 2024 AVI AND COMPANY] ‘ADVOCATES: Ftd rt RIOR] LO ne Bp. SK — out ot to: E2OE EU RK NAIROBI IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION OF KENYA IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 1, 2,10, 19,21, 27,38, 41, 73, 11, 171 AND 232 OF THE CONSTITUTION OF KENYA JUDICIAL SERVICE COMMISION. MACHARIA NJERt BETWEEN -VERSUS- SUPPORTINGAFFIDAVIT -1" RESPONDENT 2Nt RESPONDENT NELSON HAVI residing in Nairobi and of P.O Box Number 38422-00623 Nairobi hereby solemnly swear and state as follows: 1. 1am Petitioner herein. Iam competent to swear this Affidavit 2 Thave read and understood the contents of the Petition and Notice of Motion. all dated 20% March, 2024. I swear this Affidavit in su the Notice of Motion, :pport of the Petition and Exhibited herewith and collectively marked as NH-1 is bundle containing the documents relied upon in this Affidavit. Tam an Advocate and a member of the Law Society of Kenya, ‘The 1+ Respondent, Ju ial Service Commission is a Commission established under Article 171 of The Constitution of Kenya with the function of promoting, and facilitating the independence and accountability 1 of the jadiciary and thecfficient, effective and transparent administration of justice as mandated by Article 172 of The Constitution of Kenya. 6. ‘The 24 Respondent, Macharia Njeru is an Advocate and a member of the Law Society of Kenya. The 2m! Respondent was until 2 February, 2024 the elected ‘male representative of the Law Society of Kenya to the 1® Respondent, an elective public office established under Article 171 (2) (f) of The Const of Kenya, 7. The Constitution of Kenya recognizes at Article 1 thereof the sovereignty of the people with sovereign power being delegated to Parliament, the National Executive, the Judiciary and Independent Tribunals, 8, ‘The supremacy of The Constitution of Kenya is underscored under Article 2 thereof with the directive that The Constitution of Kenya is the supreme law and binds all persons and all State organs. 9. All State officers and Public officers are obligated to comply with national values and principles of good governance set out in Article 10 of The Constitution of Kenya whenever they inter ali, apply or interpret The Constitution of Kenya and apply or interpret any law. These values include the rule of law, public participation, socal justice, good governance, integrity, transparency and accountability. 10.Chapter Four of The Constitution of Kenya entrenches the Bill of Rights as ‘an integral part of Kenya's democratic state and the framevrork for social, economic and cultural policies. Amongst the rights contained in the Bill of Rights are the following: 1 The recognition under Article 19 (1) and (3) of The Constitution of Kenya that the Bill of Rights is an integral part of Kenya’s democratic state and is, the framework of social, economic and cultural policies and further, that rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State and are subject only to the limitations contemplated in The Constitution of Kenya b. The command under Article 21 (1) of The Constitution of Kenya that its a fundamental duty of the State and every State organ to observe, respect,protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights. . The right to equality and freedom from discrimination under Article 27 of, ‘The Constitution of Kenya which includes the right to equal protection and. equal benefit ofthe law. 4. The right to free, fair and regular elections based on universal suffrage and the free expression of the will of electors for any elective public body or office stablished under The Constitution of Kenya pursuant to Article 38(2) thereof. ©. Article 41 of The Constitution of Kenya which entitles every person to the right to fair Inbour practices including the right to form, jain or participate in the activities and programmes of a trade union, £. ‘The right to fair administrative action under Article 47(1) of The Constitution of Kenya which includes the right to fair administrative action that is effective, efficient, lawful, reasonable and procedurally fait, § The right under Article 47(2) of The Constitution of Kenya to be given written reasons for any administrative action likely to adversely affect a right or fundamental freedom, 11 Article 73(2) (b) of The Constitution of Kenya requires objectivity and impartiality in decision making on the part of State officers ard Public officers and in ensuring that their decisions and actions are not influenced by nepotism, favouritism and improper motives or corrupt practices, that there be honesty in execution of public duties, accountability to the public for decisions and. actions made and discipline and commitment in service to the people. 12. Article 232 of The Constitution of Kenya on the Public Service entrenches values and principles of public service applicable to the respondents as State organs, including but not limited to the following: a. high standards of professional ethics; b. efficient, effective and economic use of resources; . responsive, prompt, effective, impartial and equitable provision of services; d. involvement of the people in the process of policy making: a