Storm over ruling shielding judges from JSC hearings

The JSC responded sharply on Wednesday, asserting that the decision restricts its constitutional authority.

In a statement, the Commission chaired by Chief Justice Martha Koome expressed dissatisfaction with aspects of the judgment and confirmed it had filed an appeal.

It argued that the ruling undermines Article 168 of the Constitution, which empowers the JSC to receive and act on petitions for judges' removal. The appeal, it said, was lodged "in the public interest."

The case originated from a March 2025 petition by lawyer Kennedy Echesa Lubengu against the JSC and the Attorney General.

Mr Lubengu contested the legality of the Commission’s handling of judicial complaints without formally gazetted regulations. He specifically questioned the JSC’s handling of a misconduct complaint against Justice Dorah Chepkwony, who allegedly delayed ruling on a bail application and misplaced a court file in a criminal case.

A three-judge bench — comprising Justices Roselyne Aburili, John Chigiti, and Alexander Muteti — ruled that the lack of regulations under Section 47 of the Judicial Service Act rendered ongoing disciplinary proceedings unconstitutional.

"The absence of such regulations violates Articles 47 and 50(1) of the Constitution," the court stated, adding that allowing the JSC to proceed would "amount to condoning an illegality."

Mr Lubengu argued that the JSC relied on "internal, unknown, undocumented, and unpredictable procedures," leaving judges uncertain whether they faced administrative inquiries or removal proceedings under Article 168.

The JSC countered that the petition was premature since no determination had been made, but the court dismissed this argument, ruling that "a litigant need not wait for an unconstitutional administrative process to run its course."

The judges affirmed the High Court’s supervisory jurisdiction over the JSC’s administrative and quasi-judicial functions, emphasizing that such oversight ensures fair administrative action and due process.

They noted Kenya’s lack of a structured disciplinary framework for judges, warning that unclear regulations could lead to unfair suspensions or removals without proper safeguards.

Citing Supreme Court precedent, the bench stressed that judges must be clearly informed whether they face administrative inquiries or Article 168 removal proceedings. Ambiguity, it ruled, compromises fairness and predictability.

While the court declined to rule on the merits of the complaint against Justice Chepkwony, it issued sweeping orders, declaring that the JSC cannot lawfully hear or determine judicial petitions until regulations are gazetted.

"The court hereby prohibits the Judicial Service Commission from considering or processing any petitions against judges until regulations under Section 47 of the Judicial Service Act are enacted," the judgment stated.

However, it clarified that the JSC may still receive complaints to avoid interfering with its constitutional mandate.

The court underscored that judicial independence must be balanced with accountability rooted in due process.

In reaction, the JSC reiterated its commitment to judicial independence and accountability, noting that draft regulations are undergoing public participation following Supreme Court guidance. "This step seeks clarity on interpreting Article 168," said JSC Secretary Winfridah Mokaya.

The Commission warned that the High Court ruling hinders its constitutional duty under Article 168, calling it a "critical pillar of judicial accountability."

While acknowledging the absence of gazetted regulations, the JSC cited internal procedures and draft rules aligned with prior Supreme Court directives.

Ms Mokaya confirmed the appeal, stating it was filed "in the public interest" to resolve ambiguities regarding Article 168. "The JSC remains unwavering in upholding the Constitution," she added.

For now, the contested ruling suspends all disciplinary actions against judges, fueling debate over whether it fortifies constitutional protections or weakens judicial oversight.

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