Review JSC’s decisional independence policy

The Judicial Service Commission (JSC) recently conducted an online public participation on the proposed Judicial Service (Processing of Petitions and Complaints Procedures) Regulations 2025 with the Law Society of Kenya membership.

And the very controversial topic that became the centre of deliberations was the JSC’s policy on its decisional independence.

On this are two schools of thought. One advocates insulation of judicial officers from complaints arising from their decisions, as it is an affront to their decisional independence provided for under Article 160 (1) of the Constitution.

The other holds the view that a blanket decisional independence policy insulating judicial officers from scrutiny of their decisions breaches the provisions of Article 168 (1) (d) of the Constitution, which has incompetence among the grounds for removal from office.

And then, there is the view that the policy has, at the very best, promoted impunity and corruption, as there is literally no accountability yet some judicial decisions are, on their face value, outrageous.

Rent tribunal

There seems, however, to have been a consensus between the JSC representatives and the LSK membership that the policy should be relooked at—in the perspective of the recent case of a magistrate who granted an ex parte eviction order against a tenant over a commercial property in Nairobi.

After the tenant’s eviction, he conveniently disqualified himself from hearing the matter on account of lack of jurisdiction—a fact that was, however, discernible at the first instance, the matter being within the jurisdiction of the business premises rent tribunal. Rightfully, the JSC did not hesitate to sack the said magistrate.

I, for one, had a very nasty experience recently with a high-handed, arrogant, non-caring magistrate who openly told me that he would make me concede to an illegal decision.

When I requested him to mind his language as a judicial officer, he went berserk and told me that I could as well record him, as he does not care, yet online court proceedings are themselves recorded.

He fell short of confirming to me that he is a law unto himself! He did not even have the courtesy to explain himself and/or apologise for starting his court session late. This was unlike in our apex courts (the Supreme Court and the Court of Appeal), where the shortest delay attracts detailed explanation and an apology.

Alien documents

There is then the complaint I lodged against a magistrate who inserted alien documents in a court file in order to assist a litigant, an act that invited an indirect indictment from a High Court judge who presided over the appeal that arose therefrom.

Investigations by the head of station, the chief magistrate, also vindicated me. But seven years on, I am yet to receive a substantive, formal response from the JSC on the decision made in respect to this complaint, lodged on January 21, 2019.

Decisional independence of judicial officers should be non-negotiable and protected at all costs so that frivolous sore losers, the majority of whom lodge complaints at the JSC, are not granted any opportunity to begrudge decisions that can be subject to appeals in the normal manner. However, there should be an exceptional circumstance provision to hold rogue judicial officers accountable.

Follow our WhatsApp channel for breaking news updates and more stories like this.

Mr Sumba is an advocate of the High Court of Kenya. [email protected].