Chief Justice Martha Koome is facing a fresh proposal for her removal from office over alleged misconduct related to allegations of selecting High Court judges with short experience to determine a case lodged by Supreme Court judges, including herself, against the Judicial Service Commission (JSC).
In a complaint filed at JSC by lawyer Nelson Havi on Friday, Ms Koome is also alleged to have failed to observe procedural fairness in her administrative action.
Mr Havi contends that it was wrong for Ms Koome to assign Justices Lawrence Mugambi and Bahati Mwamuye to the expanded three-judge bench tasked with determining the case. This is because she is a party to the case and she oversaw the recruitment of the two judges in the Judiciary as the JSC chairperson.
The former president of the Law Society of Kenya says justices Mugambi and Mwamuye, having been appointed High Court judges in 2022 and 2024, respectively, should not have been assigned such a complex matter concerning substantial issues of law, due to their short stay in judgeship.
According to him, due to the gravity of the case, Ms Koome should have assigned judges with over five years of experience in judgeship or her peers in the career -the judges admitted in the bar in the 1980s - and with varied legal philosophies, regional representation and professional background.
"The gravity and weight of the claim in the petitions by judges of the Supreme Court required an expanded bench of experienced five or seven judges of diverse philosophies and manifesting the face of Kenya, not to forget gender balance," he says.
Mr Mugambi and Mr Mwamuye, who both sit at the Human Rights & Constitutional division in Milimani, Nairobi, were admitted to the bar in 2003 and 2008, respectively.
The other judge on the bench is Mr Charles Kariuki, who sits at the High Court in Narok, and was admitted to the bar in 1989 and has been in the Judiciary for over two decades.
"In any event, there are many more senior judges of the High Court, including the Presiding Judge of the Constitutional Division, who are peers of Justice Koome and who would have been suitable for assignment.
"Under Article 168 of the Constitution of Kenya, a tribunal to consider the removal of the Chief Justice of the Republic of Kenya comprises three superior court judges from common-law jurisdictions," says Mr Havi. Ms Koome was admitted to the bar in 1987.
Chief Justice Martha Koome (left), Deputy Chief Justice Philomena Mwilu (top), Justices Isaac Lenaola and Ibrahim Mohamed. (Bottom row) Justices Smokin Wanjala, Njoki Ndung'u and William Ouko.
Photo credit: File | Nation Media Group
The seven judges moved to court in February this year after the JSC signalled the commencement of disciplinary proceedings by asking them to respond to complaints filed last year by Mr Havi and others. The complaints touched on the Apex judges' decision to ban lawyer Ahmednasir Abdullahi and advocates of his law firm's from appearing before the Supreme Court.
The pending court case also involves removal of the entire seven-judge bench of the Supreme Court, a move that Ms Koome argues in her petition that it may cause Constitutional crisis in the country.
"The institution by CJ Koome of the petition against JSC before the High Court which is subordinate to her, whose decision may end up before the Supreme Court of which she is the president is gross misconduct and misbehavior. I verily believe that the assignment of the petitions in which she is the petitioner to Mr Kariuki, Mr Mugambi and Mr Mwamuye to hear is gross misconduct and misbehavior warranting her removal from office," argues Mr Havi in his 17-page affidavit of complaint.
He further believes that Ms Koome was prohibited from choosing the High Court judges, who would hear and determine in case where she is a party, and that she would have delegated the duty.
To buttress his point, he cites the case of a British lawyer and former Kenyan High Court judge, Derek Schofield, who was dismissed as the Chief Justice of Gibraltar in United Kingdom, because of alleged disreputable behaviour. The case involved Mr Schofield's decision to institute judicial review proceedings at the High Court to challenge his removal from office and which he presided over.
"The conduct of Ms Koome is similar in all aspects to that of Justice Schofield before her," argues Mr Havi adding that the High Court lacks powers to intervene or inquire into proprietary of hiring or removal of a Chief Justice and Deputy Chief Justice.
Still on prohibition of Ms Koome to assign judges to a case where she is a party, Mr Havi cites a 2021 case where retired Chief Justice David Maraga was in similar circumstances after being sued over his advisory to former President Uhuru Kenyatta on dissolution of Parliament. Mr Maraga delegated the duty to assign judges to Deputy Chief Justice Philomena Mwilu.
Mr Havi further complains that it was wrong for Ms Koome to assign Justice Mugambi the matter because she and the judge are from the same ethnic group and county.
