Supreme Court Judge Isaac Lenaola has distanced himself from a disputed ruling rendered by the court last year over the auction of former Cabinet Secretary Raphael Tuju's properties.
In fresh filings at the JSC and the High Court, the judge has accused the Commission of negligence and informed it that he was not part of the bench that issued the ruling dated October 11, 2024.
Although Mr Tuju's complaint at JSC was against the entire seven-judge bench, Mr Lenaola said the case was handled by a five-judge bench comprising Deputy Chief Justice Philomena Mwilu and justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung'u and William Ouko.
The five judges disqualified themselves from the case and reinstated a decision of the Court of Appeal to dismiss Mr Tuju's appeal challenging the enforcement of a decision in favour of the East African Development Bank (EADB) over a Sh4.5 billion loan.
Mr Lenaola said he was surprised when the JSC asked him to respond to the complaint filed by Mr Tuju through Dari Limited seeking removal of the Supreme Court judges from office over a dispute he did not participate.
"Justice Lenaola was not part of the bench that handled the Supreme Court Petition that forms the subject matter in JSC Petition Number 35 of 2024, yet the JSC has proceeded to call for a response from him," his lawyer Ken Nyaundi said in the documents.
In the complaint, Dari Limited asked the JSC to remove the seven judges of the Supreme Court over alleged misconduct and negligence in respect to the auction case on grounds that the court was working on a predetermined outcome.
Justice Lenaola stated that the JSC failed to properly screen Mr Tuju's complaint and counter-check the court's ruling before directing him to respond to allegations of misconduct.
"The JSC negligently and without cause called for a response from Justice Lenaola...Mr Tuju in his supporting affidavit confirmed that Dari inadvertently included Justice Lenaola's name in the complaint and recognised that he was not part of the bench handling the Dari petition. Mr Tuju sought that Justice Lenaola's name be struck out of the complaint," said lawyer Nyaundi, who wants Justice Lenaola's disciplinary case at JSC dismissed.
He, however, defended the judges' decision to disqualify themselves from the Tuju case saying "a judge cannot be punished for recusing himself with the intent of upholding fairness in the eyes of the public and the parties in the proceedings".
Describing the complaint as "bare and dry composite allegations which do not offer any particulars of the serious allegations made against the Justice Lenaola", the lawyer said the JSC should have filtered the matter at preliminary stage.
"This petition concerns the constitutionality of the JSC's failure to filter and to dismiss at the threshold stage, complaints not just about the merits of a judicial decision, but the merits of a judge's decision to recuse from a case on personal and conscientious grounds," he explained.
"It is questioning whether the JSC may require a judge to respond to a complaint, over a matter, like that of Dari Limited, where the judge did not sit and where the complainant has admitted mistakenly including the judge's name in the complaint," he added.
Other petitions filed against the Supreme Court judges, including Chief Justice Martha Koome, are by lawyers Nelson Havi and Christopher Rosan.
