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Why three judges refused to exit cases on CJ Koome, Supreme Court judges
From right: High Court Judges Bahati Mwamuye, Charles Kariuki and Lawrence Mugambi at the High Court in Milimani on Friday, November 14, 2025.
Three judges have dismissed an application for their recusal from a case seeking the removal of Chief Justice (CJ) Martha Koome and four other Supreme Court judges from office, saying it lacks merit.
Judges Charles Kariuki, Lawrence Mugambi, and Bahati Mwamuye, sitting at the High Court in Milimani on Friday, November 14, 2025, ruled that the applicant had failed to present valid grounds to warrant the case being sent back to the CJ to appoint a new bench to hear a case opposing the Judicial Service Commission (JSC) hearing and determining the petition seeking the removal of Supreme Court judges.
The recusal application was filed by, among others, former Law Society of Kenya chairman Nelson Havi.
The applicants had challenged the empanelment of the three judges by Justice Koome, alleging they lacked the requisite expertise to handle the matter seeking the removal of the CJ and other Supreme Court judges from office.
“The application seeking our recusal and referring the case back to the Chief Justice to empanel a new bench lacks merit and is hereby dismissed,” ruled the three judges.
The judges ruled that accusations levelled against them of alleged bias and claims of questionable expertise were not substantiated.
The court rejected allegations that justices Mugambi and Mwamuye were selected in a manner that compromised their independence.
“We emphasise constitutional principles, that all High Court judges enjoy equal status and competence,” the three judges observed.
They disregarded allegations that judges Mugambi and Mwamuye were too junior or lacked the requisite expertise to adjudicate the weighty legal issues raised in the cases seeking the removal of the CJ and others from office.
They stressed that seniority does not determine a judge’s capacity to hear a matter.
The judges observed that the application amounted to an attempt to reopen issues beyond the High Court’s jurisdiction.
“The issues raised herein are functus officio (matter already heard and decided) and cannot be heard again. No appeal was filed after a decision was made,” they ruled.
The trio dismissed the argument that the Deputy Chief Justice should have appointed the bench to hear the applicants’ case since the CJ was the subject of the litigation.
Judges Kariuki, Mugambi, and Mwamuye said the power to empanel judges to hear constitutional issues is vested in the Chief Justice.
They cited a Court of Appeal decision in a matter involving impeached Deputy President Rigathi Gachagua, where it was held that only the CJ is mandated to empanel a bench to determine a constitutional issue.
The applicants had argued that Chief Justice Koome, being a subject of the disputed JSC proceedings, should have recused herself and delegated the responsibility to Deputy Chief Justice Philomena Mwilu to empanel the bench to hear the case.
They had also argued that the judges appointed to hear the petition were sworn in in 2022 and 2024, and were therefore too junior to handle the case. It was alleged that they were vetted by the JSC, which was chaired by Justice Koome, thereby raising the aspect of bias.
But the judges found that no evidence was presented to support fears of a favourable or prejudiced decision.
With the dismissal of the recusal application, the judges cleared the way for the substantive hearing of the case challenging the JSC’s handling of the petitions seeking the removal of the CJ and other apex court judges from office.
The judges therefore affirmed that the bench was constituted lawfully and that the allegations of bias were speculative.
The matter has been fixed for hearing on February 13, 2026.
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