Supreme Judge Isaac Lenaola has urged the High Court to forward cases seeking the removal of judges of apex court to Chief Justice Martha Koome for appointment of a bench.
Making his submissions before judge Lawrence Mugambi, Justice Lenaola said the issues raised in his application were weighty and should be addressed by a bench of more than two judges.
Justice Lenaola maintained that the application raised substantial questions of law that needed to be heard by an uneven number of judges.
“The petition seeks clarity on the constitutionality of the complainants’ scheme to abolish the Supreme Court in the guise of complaints against all the seven judges. It also seeks to determine whether the seven Supreme Court judges would be entitled to approach the High Court for redress since a judge aggrieved by a removal decision is entitled to approach the Supreme Court. In this case the seven judges would be appealing to themselves -an absurdity,” he said on Wednesday through his lawyer Ken Nyaundi.
Mr Nyaundi submitted that according to Article 165(4) of the Constitution, the appointment of judges was an administrative function of the Chief Justice.
He said the application filed by Justice Lenaola raises complex substantial issues of law concerning the constitutional process of a judge’s removal from office.
Justice Isaac Lenaola.
Photo credit: File | Nation Media Group
It was submitted that that the application for appointment of three or five judges to determine the removal of the seven should explain how to separate the person and position of the Chief Justice.
Lawyers George Oraro, and Ochieng Oduol for the CJ and William Ouko, respectively, supported the application, arguing that an expanded bench should determine the questions raised.
However, former Cabinet Secretary Raphael Tuju, his three children and his two companies opposed the matter being referred to the CJ for appointment of a bench of judges.
Through his lawyers Gregory Odhiambo Ndege, Paul Nyamodi and Duncan Okatch, Mr Tuju argued that Justice Koome was one of the defendants in the ouster petitions, and she cannot, therefore, be impartial.
Mr Ndege said Articles 27 and 47 of the Constitution requires every citizen to get fair administration of justice.
Justice Mugambi was told the petitions for the removal of the seven apex court judges have been filed at the Judicial Service Commission (JSC), whose chairperson was Justice Martha Koome and also the President of the Supreme Court.
Mr Ndege told Justice Mugambi Article 172 of the Constitution explains how JSC deals with complaints against judges and the commission should, therefore be left to do its work.
Mr Okatch submitted under Article 165 (4) of the Constitution the jurisdiction of the judge to refer the matter to the CJ was also in question.
He said if the judge finds that he lacked the powers to refer the case to the CJ for expansion of the bench then he shall determine the issues raised in the cases.
The former CS said the ouster petition concerns the Supreme Court’s ruling on a commercial dispute pitting his company Dari Limited and the East African Development Bank over a disputed loan.
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 petitions for the removal of the Supreme Court judges, including the CJ, over alleged misconduct has triggered protests from the proponents of the ouster motion.
The judge heard the petitions filed at the JSC have been deflated following orders temporarily prohibiting it (JSC) from determining them.
The ouster petitions originated from a unanimous decision of the Supreme Judges in January last year to ban lawyer Ahmednasir Abdullahi over his social media posts regarding the Apex court.
Justice Mugambi will rule on the application on April 25, 2025.
