Justice Chacha Mwita ruled that the High Court has the powers to determine the petition as anyone claiming infringement of constitutional rights and fundamental freedoms cannot be shut out but should be heard.
The Supreme Court wanted the petition dismissed on grounds that the High Court has no powers to determine the case as it will challenge orders given by judges of a higher court.
According to the Supreme Court judges, hearing the case before the High Court would lead to subversion of the Constitution and create and absurdity and embarrassment to the judicial system in the country.
The judges, led by Chief Justice Martha Koome, had argued that they enjoy immunity under the Constitution and the Judicature Act and therefore cannot be sued for discharging their judicial duties.
But Justice Mwita said it is a cardinal principle in the Constitution that a petitioner who has come to court on the basis that his rights and fundamental freedoms have been violated or infringed, should be accorded an opportunity to be heard so that the court can make an informed decision on the issue.
“In that respect, my view is that the issues raised in the petition are not idle. They fall within the ambit of Article 23 (1) 165(3)(b) of the constitution and therefore under the jurisdiction of this court. The court has to determine whether indeed rights and fundamental rights have been violated or threatened to be violated,” said the judge.
LSK moved to the High Court challenging the decision to bar Mr Abdullahi and 10 associates in his law firm from appearing before the Supreme Court. The lawyers’ lobby said the decision goes against the rules of natural justice as Senior Counsel Abdullahi was not given an opportunity to be heard despite the seriousness of the decision.
It is LSK’s argument that the decision was unconstitutional, unreasonable and contrary to the laws.
Justice Mwita said the court has to decide whether the action complained of and those raised by the Supreme Court judges are inconsistent with the Constitution.
The LSK has named the seven judges and the deputy registrar of the apex court as interested parties in the case.
Mr Abdullahi supported the LSK petition, saying the pronouncement by the Supreme Court on January 18 was not a judicial decision but an administrative one.
The lawyer said there was no judicial process leading to the decision to bar him from appearing before Kenya's top court.
In the letter addressed to Mr Abdullahi and his law firm on January 18, the court said the lawyer and employees of his law firm will not be granted audience over his persistent attacks against the leadership and judges of the court.
