Supreme Court gets judges, magistrates backing in JSC battle

Judges and magistrates have backed cases filed by their seven colleagues at the Supreme Court who have sued the Judicial Service Commission over petitions filed to remove them from office.

 Through their umbrella body, Kenya Magistrates and Judges Association (KMJA) argued that Chief Justice Martha Koome, her deputy Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko have a right to approach the High Court to fight for their rights.

 The association argued that judges are human beings just as anyone else, adding that they do not surrender their human rights whenever they take an oath of office.

 “To do so would set a dangerous precedent that erodes constitutional protections and undermines the rule of law. Judges, like all citizens, have constitutional rights that are not surrendered upon taking judicial office  It is settled that there is no constitutional violation that the Constitution of Kenya 2010 is incapable of remedying," KMJA stated

Pointing out, "The Constitution allows the petitioner herein to approach the court whenever any of his rights are infringed upon and/or when threatened with violation"

The Justice Stephen Radido led the association in its submissions, argued that lawyer Nelson Have is wrong to say that the High Court does not have the power to entertain or hear cases emanating from petitions for removal of a judge.

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KMJA said would be unfair for a judge or magistrate to be forced by the Judicial Service Commission (JSC) to participate in an illegal process without the court’s intervention.

“ Your Lordship, in the premises, we submit that if the process of removal is unconstitutional, wrong, un-procedural or illegal, it cannot lie for the second innterested party (Havi) herein to say that this court has no jurisdiction to address the grievances raised by the petitioner,” KMJA’s submissions filed by Kiragu Wathuta advocates read in part.

At the same time, KMJA supported a prayer by Justice Lenaola to have an uneven number of judges hear the case.  The association said that the seven judges' cases raised novel issues of public interest that needed more than one judge to solve.

It asserted that it is the first time in Kenya’s history that entire Supreme Court judges were before the High Court seeking orders to safeguard their constitutional rights.

The association maintained that even if the Chief Justice appoints a bench, she had no control or influence against judges’ decisional independence.

Further, it argued that Justice Koome’s role is administrative, adding that even if she is a party in the cases before the court, she will simply implement the court order. Hence, there are no instances of bias, it said.

“ Based on the preceding analysis, the Chief Justice's function is not to influence the judicial deliberation or ultimate decision of the empanelled Judges rather the Chief Justice's responsibility concludes upon the proper constitution of the bench.”

“Furthermore, it is our humble submission that the petition raises a substantial question of law requiring the empanelling of an uneven number of judges to consider both the Application dated 21st February 2025 and the petition of even date as provided for under Article 165(4) of the Constitution,” the association’s submissions read.

 The association was responding to Havi’s application to strike out the cases filed by the apex court judges. In his case, Havi claimed the High Court had no power to entertain the seven cases.

This comes as the seven judges struck out an application seeking a review of the order banning lawyer Ahmednasir Abdullahi and his law firm’s associates from appearing before them.

They found that lawyer Julius Miiri had no authority to file the case as he was neither an affected persons by the order nor a party in the case where they cracked the whip on the lawyer.

The seven judges said Miiri was a passerby who, even if the order disgruntled him, had nothing linking him to it.

“ Having arrived at the determination that the application as filed is procedurally flawed and that the applicant lacks the locus standi to file the same,  we must reach the inescapable conclusion that the application as filed is incurably defective and must be struck out,” the bench headed by Justice Koome ruled.

In the application, Lawyer Julius Miiri argued that the apex court's decision had a direct implication on litigants’ right to be represented by advocates of their choice.

Miiri said that the court also condemned all lawyers who work in Ahmednasir’s law firm despite their not being part of the contempt case against the court.

Although the law firm and its associates were named as parties in the application, they did not respond. Instead, they sent a letter arguing that, owing to the ban, they had no capacity to respond to the court.

 Njiiri filed a further response stating that the orders did not affect each associate individually but only when representing Ahmednasir’s law firm.