We can’t be sued for doing our job, Supreme Court judges say
Supreme Court judges (from left) Isaac Lenaola, Dr Smokin Wanjala, Philomena Mwilu, Martha Koome, Mohamed Ibrahim, Njoki Ndung’u and William Ouko on January 20, 2022.
Supreme Court judges led by Chief Justice Martha Koome now want their names struck out from a petition filed by the Law Society of Kenya (LSK) challenging the decision barring Senior Counsel Ahmednasir Abdullahi from appearing before the apex court.
The judges said, in response filed to the case, that they enjoy immunity as granted to them by the Constitution and the Judicature Act and, therefore, cannot be sued in relation to decisions made while discharging their judicial duties.
The Supreme Court judges further said the High Court has no powers to determine the case as it seeks to challenge orders given by judges of a higher court.
“The petition, if allowed to proceed, would occasion inevitable subversion of the Constitution and create and absurdity and embarrassment to the judicial system in Kenya,” the judges of the apex court said.
The LSK moved to the High Court last month arguing that the decision to bar Mr Abdullahi and his associates from appearing before the Supreme Court goes against the rules of natural justice as the lawyers were not given an opportunity to be heard despite the seriousness of the decision.
The LSK says the decision is unconstitutional, unreasonable and contrary to the statute. The lawyers’ body has sued the Supreme Court and names all the judges and the deputy registrar of the court as interested parties in the case.
The top court judges said the petition, challenging the decision made on January 18, is premature because the lawyers who were barred from the court have not exhausted available remedies such as seeking a review from the Supreme Court.
“By virtue of Article 163(7) of the Constitution, the decisions of the Supreme Court (whether in exercise of its original or appellate jurisdiction) are binding on all other courts (including this honourable court) except the Supreme Court,” the judges said.
Through Senior Counsel Kamau Karori, the judges said the High Court is expressly prohibited from exercising jurisdiction over matters reserved exclusively for the Supreme Court.
In a letter addressed to Mr Abdullahi and his law firm on January 18, the court said the lawyer and employees of his law firm, persons holding his brief or acting on his instructions will not be granted audience over his persistent attacks against the leadership and judges of the court.
The LSK said in the petition that the Supreme Court has, in its armoury, tools with which to punish advocates for their unbecoming conduct, after following the due process including contempt of court but failed to use them.
“There is no evidence to show that the publications by Ahmednasir Abdullahi SC undermined the confidence of the parties in the suits and of the general members of public in the administration of justice or in the judges of the court in discharging their duties,” the LSK said.
The argued that a democratic country requires pluralism, tolerance and broadmindedness, which the Supreme Court failed to exercise.
