Wasilwa v Judicial Service Commission; Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers & 3 others (Interested Parties) (Petition E237 of 2023) [2024] KEELRC 1071 (KLR) (13 May 2024) (Ruling)

Facts

The case involved a petition by Justice Helen Wasilwa against the Judicial Service Commission (JSC) regarding the role of the JSC as a putative employer of judges.

Issues

1. What was a factual and legal contextualization on who in law was an employee and who was an employer?
2. What was the doctrine of putative employer?
3. Whether the Judicial Service Commission was the putative employer of judges in Kenya?
4. Whether the appointment of judges by the President and setting of their remuneration by the Salaries and Remuneration Commission rendered the President as the putative employer of judges of Kenya?

Reasoning

The court established that an employment relationship requires a contract of service, provision of service, and receipt of wage or salary. The doctrine of putative employer was recognized, including agents, foremen, managers, or factors of the real or legal employer.

Outcome

The JSC was held to be the putative employer of judges in Kenya.

Authorities cited