A recent judgment stopping the Judicial Service Commission (JSC) from pursuing the removal of Justice Anthony Ombwayo has revived scrutiny of how complaints and misconduct allegations against judges are handled.
On October 2, 2026, a three-judge bench of the Employment and Labour Relations Court permanently restrained the JSC from continuing proceedings against Mr Ombwayo or forwarding the matter to the president for a possible tribunal.
The court found that a letter from a litigant to the Chief Justice, which triggered the disciplinary process, was not a valid removal petition under Article 168 of the Constitution and that the JSC had breached the judge’s right to fair administrative action.
The judgment joins a decade-long trail of cases in which judicial officers challenged JSC procedures, jurisdiction and fairness. The decisions expose weaknesses, and show different remedies and outcomes.
Justice Ombwayo’s case began with a letter dated March 14, 2025, from businessman Juma Okumu, through his lawyers, to the Chief Justice. It raised allegations of conflict of interest in a land dispute, links between the judge and businessman Joshua Kulei, and financial benefits.
The letter sought to have the case files moved from Mr Ombwayo’s court to another judge, rather than expressly seeking his removal.
The JSC treated the letter as a removal petition, admitted it for consideration, asked the judge to respond and moved towards an oral hearing.
Justice Ombwayo filed his court petition on February 13, 2026. The three-judge bench, comprising justices Jemimah Keli, Onesmus Makau and Jacob Gakeri, held that the letter was not a valid Article 168 petition and that the JSC could not convert it into one through its own-motion powers. Justice Ombwayo serves at the Environment and Lands Court.
The orders stopped the process and barred the commission from forwarding the matter to President William Ruto to appoint a tribunal to investigate the judge.
A similar procedural battle featured in Mr Kennedy Lubengu’s case, which concerned a complaint against High Court Judge Dorah Chepkwony. The case, which is pending determination at the Court of Appeal, concerns the JSC’s procedures for disciplining judicial officers.
In April 2025, the High Court issued orders stopping the JSC from taking further steps on the complaint while Mr Lubengu’s constitutional petition was pending.
The petition challenged the commission’s handling of complaints against judges, including the absence of published regulations setting out a predictable disciplinary process.
On December 18, 2025, a three-judge bench barred the JSC from considering or processing petitions against judges for hearing until regulations contemplated under Section 47 of the Judicial Service Act were promulgated and implemented.
The court did not prohibit the JSC from receiving complaints and declined to determine the merits of the complaint against Justice Chepkwony, saying those matters fell within the commission’s mandate.
“The court issues an order prohibiting the JSC from considering or processing for hearing any petitions lodged against Judges until the regulations contemplated under Section 47 of the Judicial Service Act are promulgated and implemented,” said the bench comprising justices Roseline Aburili, John Chigiti and Alexander Muteti.
The judgment stated that judges facing complaints lacked clear notice of the procedures, evidentiary standards and criteria the Commission would apply. The JSC opposed the petition, arguing that the challenge was premature and interfered with its constitutional mandate.
The dispute escalated to the Court of Appeal after the commission challenged the High Court’s findings. The appeal is pending determination.
Justice-Chepkwony
Photo credit: File | Nation Media Group
The judgment was significant because the orders affected the processing of petitions against judges generally, and not only the complaint involving Ms Chepkwony.
Justice Helen Wasilwa’s case provides another example. In February 2025, the Employment and Labour Relations Court found that the JSC had failed to determine her preliminary objections to a complaint concerning a judicial decision.
She challenged the JSC’s handling of a complaint arising from her 2022 ruling at the Employment and Labour Relations Court in Kericho.
She objected that the JSC lacked jurisdiction to entertain a complaint challenging a decision she had made in exercising her judicial authority. The judge argued that the JSC had failed to determine this preliminary objection before proceeding with the complaint.
The case was heard by a three-judge bench comprising Justices Stephen Radido, Christine Baari and Jacob Gakeri. The judges declared that the JSC ought to have determined the threshold objection raised by Justice Wasilwa before proceeding to consider the substantive complaint.
They declared that this failure violated the right to fair administrative action and directed the Commission to decide the threshold legal questions.
“The respondent (JSC) did not give the petitioner any response on her threshold objections or inform her how, when or whether the objections would be determined. The respondent proceeded as if no threshold objections had been raised. These objections went to the question of whether the respondent had the jurisdiction to entertain the complaints,” the court noted.
“Failure by JSC to consider an objection on its jurisdiction is a violation of the right to fair administrative action of the objector,” said the bench.
The court required the JSC to address jurisdiction and the complaint’s legal basis before proceeding. The case shows how leaving preliminary objections unresolved can undermine a disciplinary process.
Deputy Chief Justice Philomena Mwilu.
Photo credit: File | Nation Media Group
Deputy Chief Justice Philomena Mwilu also challenged the JSC’s handling of petitions seeking her removal from office, including the commission’s decision to require her to respond to complaints initiated by the Director of Public Prosecutions (DPP) and the Directorate of Criminal Investigations (DCI).
In 2020, she challenged the legality of the process, arguing that the two agencies lacked standing to initiate her removal.
The court issued orders suspending consideration of four removal petitions before ultimately quashing the JSC’s decision requiring her to respond to the petitions filed by the DPP and DCI. The judgment was issued by a bench comprising justices Said Chitembwe, Weldon Korir and Roselyn Aburili.
The court found that the State agencies lacked standing to initiate that process. The dispute exposed a specific weakness in the Commission’s handling of removal complaints: its decision to proceed with a petition that the court found had been initiated by parties without the required legal standing.
However, a November 2021 ruling in a case pitting Busia Senator Okiya Omtatah against the JSC provided a counterpoint, with the High Court finding that the commission had not failed in its constitutional mandate regarding the complaints against Ms Mwilu.
The court stated that the JSC “has not failed in its constitutional mandate regarding the complaints against the Deputy Chief Justice”.
Court of Appeal Judge Sankale ole Kantai’s case offers a direct example of a court restraining the JSC from processing petitions seeking a judge’s removal.
Busia Senator Okiya Omtatah.
Photo credit: File | Nation Media Group
The petitions, filed by Senator Omtatah and Ms Gabrielle Hannah Van Straten, the sister of murdered Dutch businessman Tob Cohen, alleged misconduct linked to investigations into Cohen’s 2019 murder.
Justice Kantai had been arrested in February 2020, but the DPP informed him in August 2021 that there was insufficient evidence to charge him. He, subsequently, filed a separate constitutional petition challenging his arrest and the conduct of the investigations.
The removal petitions relied heavily on an affidavit filed in that case, whose contents were later disputed by the investigating officer.
In his September 19, 2025 judgment, Justice Chacha Mwita found that the unresolved dispute over the affidavit was relevant to the JSC proceedings and that Justice Kantai needed a fair opportunity to respond after the facts had been determined.
“The call to respond should not be rushed where issues touching on the complaints are, like in this case, active in court especially if the contents of an affidavit central to the complaints are disputed and are the subject of the active litigation in court,” observed Justice Mwita.
He also faulted the commission for failing to respond to Justice Kantai’s request to defer consideration of the petitions.
“Failure to respond to the petitioner’s request was a violation of that legitimate expectation which left the petitioner unsure of the respondent’s stand over his request thereby resorting to filing this petition,” he stated.
Addressing the risk of delaying the disciplinary process, Justice Mwita concluded: “Apart from perhaps a temporary delay in processing the petitions, the respondent will also not suffer any prejudice if processing of the petitions filed against the petitioner is not done immediately. The right to fair hearing must not be sacrificed at the altar of expediency.”
The court, therefore, restrained the JSC from considering the removal petitions until the related constitutional petition was determined.
In a major challenge to the JSC’s disciplinary powers, Chief Justice Martha Koome, Deputy Chief Justice Mwilu and five Supreme Court judges argued that complaints against them arose from decisions made collectively in their official judicial capacity, rather than from individual misconduct warranting removal.
In an October 2, 2026, judgment, a three-judge High Court bench faulted the JSC for requiring responses without demonstrating that it had properly screened the complaints.
The bench said the preliminary assessment was “a vital component of constitutional procedural fairness under Article 47, acting as an essential filter to safeguard integrity and individual rights”.
