Senior Counsel Ahmednasir Abdullahi has said Supreme Court judges cannot cite judicial immunity for denying him and 10 advocates from his law firm audience.
In response to a preliminary objection filed by the judges of the apex court, Mr Abdullahi said the pronouncement made by the Supreme Court on January 18, denying him an audience, was not a judicial decision but an administrative move.
The lawyer said there was no judicial process leading to the decision to bar him from appearing before the top court, hence the Supreme Court judges cannot cite immunity and call for the dismissal of the petition.
“The 1st -7th respondents/applicants (Supreme Court judges) were not acting judicially and were all aware that they acted without jurisdiction,” Mr Issa Mansur said in reply.
The seven judges led by Chief Justice Martha Koome have asked the High Court to dismiss the petition filed by Law Society of Kenya (LSK) arguing that they enjoy immunity under the constitution and the Judicature Act and therefore, cannot be sued for discharging their judicial duties.
The Supreme Court judges further said the High Court has no powers to determine the case as it seeks to challenge orders given by judges of a higher court.
“The petition, if allowed to proceed, would occasion inevitable subversion of the Constitution and create and absurdity and embarrassment to the judicial system in Kenya,” the apex court judges said.
Mr Mansur, however, said the petition was not a challenge to the judges’ exercise of judicial power, but a challenge to the administrative decision, as communicated by the Deputy Registrar of the Supreme Court, to deny the law firm audience.
“Neither can the said decision be subject of a review under section 21A of the Supreme Court Act as the same is not a decision of the court in the manner envisaged in law, not having arisen from a determination of the matter before the court in a specific matter,” he said.
“The impugned decision is not a judicial decision of the court made in the exercise of its original or appellate jurisdiction under the constitution or the Supreme Court Act,” he said adding that the move was not a ruling or a judgment of the court.
According to the lawyer, the petition challenged the violation of the petitioner's constitutionally guaranteed rights and freedoms as a result of the arbitrary administrative decision to deny them an audience before the Supreme Court. He added that the decision was reached ultra vires and without due process.
The LSK moved to the High Court last month arguing that the decision to bar Mr Abdullahi and his associates from appearing before the Supreme Court goes against the rules of natural justice as the lawyers were not heard despite the seriousness of the decision.
The LSK says the decision is unconstitutional, unreasonable and contrary to the statute. The lawyers’ body has sued the Supreme Court and named all the judges and the deputy registrar of the court as interested parties in the case.
In a letter addressed to Mr Abdullahi and his law firm on January 18, the court said the lawyer and employees of his law firm, persons holding his brief or acting on his instructions will not be granted audience over his persistent attacks against the leadership and judges of the court.
