The Supreme Court Judges, including Chief Justice Martha Koome, on Friday, secured a third win against the proponents of their removal from office over alleged misconduct, incompetence, and misbehavior.
This was after High Court judge Lawrence Mugambi found that a consolidated case filed by Justice Koome and the other apex judges, challenging the decision of the Judicial Service Commission (JSC) to initiate their disciplinary process, deserved to be determined by an expanded bench appointed by the CJ.
He found that the case raises at least five weighty Constitutional questions involving the ouster of superior judges.
The ruling came days after the High Court in Milimani Nairobi (Justice Bahati Mwamuye) and in Narok (Justice Charles Kariuki) issued separate rulings in favour of the Supreme Court judges against the JSC and proponents of the ouster.
In his verdict, Justice Mugambi dismissed protests by the proponents of the ouster of the full seven-judge bench, who had opposed certification of the case as having any novel issue of law.
They were led by lawyers Ahmednasir Abdullahi, Christopher Rosana, and Nelson Havi together with Dari Limited, which is linked to former Cabinet Secretary Raphael Tuju in pushing for the case to be determined by a single judge.
Mr Abdullahi was of the view that certifying the case as having novel legal issues and forwarding the file to Ms Koome to expand the bench, "will be an epic scandal, it will be taught in law schools.”
They were opposed to the constitution of an expanded bench saying this would make Ms Koome conflicted since she is one of the parties in the legal dispute and is the only one mandated to appoint judges in the empaneled bench.
However, Justice Mugambi ruled that even if Ms Koome is a party, the Constitution is couched on mandatory terms that only the Chief Justice could empanel a bench.
"One thing is unmistakably clear to me though. Once the court certifies that the matter raises a substantial question of law under Article 165 (4) of the Constitution, the consequence of that finding is coached in mandatory terms.
The Constitution directs what shall follow by use of the mandatory word ‘shall’ by stating thus: ‘shall be heard by an uneven number of judges being not less than three, assigned by the Chief Justice’," said Justice Mugambi.
He explained that the role of empaneling a bench is reserved for the CJ and there is no substitution.
"The only person who can empanel an uneven bench of judges to hear and determine the matter is the Chief Justice.
There being no substitute as to who else may perform this mandatory constitutional function, the court is compelled to resort to the doctrine of necessity. The Constitution empowers only the Chief Justice to empanel an uneven number of judges under Article 165(4) hence is the only person who can do so," he stated.
His lawyers Dr Ken Nyaundi and Dudley Ochiel argued that it was the first time the country's High Court was being asked whether the Supreme Court judges were entitled to approach the High Court seeking redress.
Since superior judges aggrieved by a removal decision are entitled to approach the Supreme Court for legal redress, they said in the present case, in the event of removal, the seven Supreme Court judges would be appealing to themselves which would be an absurdity.
Mr Lenaola also stated that JSC had failed to protect judicial officers against persistent online vilifying speeches and commentaries, "which are disguised as an exercise of the freedom of expression".
The application was supported by Ms Koome and the other Supreme Court judges, who submitted that given the nature of the claims in the case and the lack of legal precedent for these claims, the High Court ought to find that the threshold for empanelment has been met.
Among the five substantial questions of law the expanded bench is expected to deal with is whether the JSC must undertake a preliminary appraisal of the petitions seeking the removal of judges to ascertain if the grounds cited meet the threshold for the removal of a judge before requiring the judge to respond.
This exercise would be intended to weed out frivolous and vexatious complaints and protect the judges against intimidation, distortion, and pressure in the performance of their judicial duties to safeguard judicial independence.
The second question is whether the JSC can entertain complaints for the removal of a judge, where such complaints are also the subject matter of active litigation pending before the courts, resulting in concurrent proceedings on similar facts before the commission and in the courts.
Third is whether the processing of ouster petitions that challenge the merit of judicial decisions undermines the principle of judicial independence.
The fourth question concerns the constitutionality of a collective petition that seeks the removal of all judges constituting a court established by the Constitution; whether it amounts to a real threat to unconstitutionally abolish the court.
Lastly, is whether the JSC neglected its constitutional mandate of promoting and facilitating the independence of the judiciary.
"The resolution of the issues will not only provide clarity in the law that ensures judges are accountable for their actions but will also clarify the manner that process may be undertaken without compromising the principles of judicial independence," said Justice Mugambi.
He directed the parties to appear before the High Court's Deputy Registrar on May 6, 2025, to confirm if the Chief Justice has empaneled a bench.
