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JSC briefly regains power to discipline judges
Members of Judicial Service Commission during a past sitting at the Supreme Court Building.
The Judicial Service Commission (JSC) has temporarily regained its authority to discipline judges after a High Court ruling that had frozen its mandate was suspended until January 23, 2026, when an appellate decision is expected.
The temporary stay means the JSC can continue receiving, hearing, and determining disciplinary petitions against judges, easing fears of an accountability shutdown.
The controversy stems from a judgment delivered on December 18, 2025, which barred the JSC from processing complaints filed against judges until it gazettes regulations under Section 47 of the Judicial Service Act. The court held that proceeding without the rules violated due process.
That ruling immediately sparked concern within the judiciary and legal circles, with critics warning it could paralyse oversight and shield judges from scrutiny.
The JSC moved to the Court of Appeal, arguing that the judgment unlawfully curtailed its constitutional mandate under Article 168, which empowers it to receive and act on petitions for the removal of judges.
“The High Court has not only subverted the Constitution but reversed all the progressive jurisprudence under the new Constitution. It has taken the country back to the 1980s to the discredited and warped jurisprudence on the enforcement of the Bill of Rights being subject to Regulations under the repealed Constitution,” the JSC argued.
It added that the contested judgment had the effect of jeopardizing the ongoing interviews for judges of the Court of Appeal, as the Commission may not be able to consider complaints against the applicants, who are serving as judges of the superior courts.
The application for suspension of the judgment was supported by the Law Society of Kenya’s advocates, led by Senior Counsel Phillip Murgor, who is also the chairperson of the Senior Counsel Bar.
The case was triggered by a case filed in March 2025 by lawyer Kennedy Lubengu against the JSC and the Attorney General.
Mr Lubengu challenged the legality of the Commission’s disciplinary processes, arguing that it was acting without formally gazetted regulations as required by law.
"Unconstitutional proceedings"
He cited the JSC’s handling of a misconduct complaint against Justice Dorah Chepkwony, who was accused of delaying a ruling on a bail application and misplacing a court file in a criminal case.
A three-judge bench comprising Justices Roselyne Aburili, John Chigiti, and Alexander Muteti agreed with Mr Lubengu, ruling that the absence of regulations under Section 47 rendered ongoing disciplinary proceedings unconstitutional.
“The absence of such regulations violates Articles 47 and 50(1) of the Constitution,” the judges said, adding that allowing the JSC to proceed would “amount to condoning an illegality.”
The stay of this decision has relieved fears that the Judiciary would be left without an effective accountability mechanism, a concern that had drawn sharp criticism following the ruling.
Mr Lubengu told the court that the Commission relied on “internal, unknown, undocumented, and unpredictable procedures,” leaving judges unsure whether they faced administrative action or removal proceedings under Article 168.
But in the pending appeal, the JSC argues that the judges erred in considering an “incompetent and defective petition filed by an advocate on behalf of a judge against whom a petition had been presented, thereby constituting an abuse of the court process.”
JSC Secretary Wilfridah Mokaya says the High Court wrongly interpreted Article 168(4) of the Constitution on the mandate of the JSC to consider petitions for the removal of judges.
“The judges misinterpreted the Supreme Court’s decision on the JSC’s disciplinary mandate under Article 172 and conflated it with the Commission’s mandate under Article 168(4) of the Constitution,” says Ms Mokaya.
She adds that the High Court erred in imposing obligations on the Commission that have no foundation in the Constitution.
“Article 168(4) of the Constitution does not require the enactment of any regulations by the Commission or Parliament,” she says.
The JSC argues that the petition was premature since no final decision had been made.
The High Court rejected that argument, stating that “a litigant need not wait for an unconstitutional administrative process to run its course.”
The judges also affirmed the High Court’s supervisory role over the JSC’s administrative and quasi-judicial functions, warning that Kenya lacks a clear and structured disciplinary framework for judges.
They cautioned that vague procedures could expose judges to unfair suspensions or removals, undermining predictability and due process.
While declining to rule on the merits of the complaint against Justice Chepkwony, the court issued sweeping orders barring the JSC from processing judicial petitions until regulations are gazetted. Those orders are now suspended on a temporary basis.
The stay restores the JSC’s disciplinary powers until January 23, 2026, preventing a backlog of complaints and maintaining continuity within the justice system.
The Commission said draft regulations are undergoing public participation in line with Supreme Court guidance. Ms Mokaya said the process seeks clarity on the interpretation of Article 168.
The JSC warned that enforcing the High Court ruling would weaken “a critical pillar of judicial accountability,” even as it acknowledged the need for clear rules.
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