Apex court judges challenge petitions seeking their ouster

Chief Justice Martha Koome and her Deputy Philomena Mwilu on Friday urged the High Court to quash complaints lodged before the Judicial Service Commission (JSC) seeking their removal over alleged gross misconduct and bias.

Appearing before a three-judge bench comprising Justices Charles Kariuki, Lawrence Mugambi, and Bahati Mwamuye, the CJ and DCJ, along with four Supreme Court judges, mounted a spirited fight against petitions filed by former Law Society of Kenya President Nelson Havi, Senior Counsel Ahmednasir Abdullahi, and former Cabinet Secretary and MP Raphael Tuju.

They argued that the complaints are constitutionally defective and should never have been entertained by the JSC.

Through Senior Counsel George Oraro, Chief Justice Koome told the bench that the complaints effectively invite the Commission to sit on appeal over Supreme Court decisions, which the Constitution expressly prohibits.

"Where a judge makes an error, the only remedy known to the law is an appeal. But the Constitution is clear that the Supreme Court is the final court. The JSC has no power to review or correct decisions of the Supreme Court," Oraro submitted.

Koome emphasised that the complaints are not based on allegations of misconduct envisaged under Article 168 of the Constitution but on dissatisfaction with judicial determinations.

"The JSC must first establish procedural rules that are fully consistent with constitutional principles before proceeding with any disciplinary action against judges. Without such a framework, any process would be ultra vires and undermine the rule of law," Oraro said  

Tuju's complaint arises from how the Supreme Court handled disputes involving him and his company, Dari Limited, against East African Development Bank (EADB) over a debt exceeding Sh4.5 billion.

 Following adverse rulings, he accused five Supreme Court judges of bias and incompetence, leading to their recusal from his case in October 2024 and the subsequent filing of petitions.

Ahmednasir's complaint stems from orders barring him and his firm from appearing before the apex court issued in January 2023, which were later lifted.

Havi's petition alleges bias and improper exercise of judicial authority.

All six Supreme Court judges have maintained that the complaints amount to an attempt to use disciplinary machinery to re-litigate concluded judicial disputes.

Oraro argued that the framers of Kenya's Constitution deliberately designed the Supreme Court as the apex institution of judicial authority, with decisions binding on all persons and state organs.

"The people of Kenya wanted a judiciary that is independent and free from interference by any person or institution," he said, citing the final report of the Constitution of Kenya Review Commission.

"These principles were incorporated into our Constitution through Article 151, securing judicial authority as subject only to the law and the Constitution."

Oraro added that judges are not liable for actions done in good faith in the proper exercise of judicial power, and Section 129 of the Evidence Act further protects them from being compelled to answer questions about their conduct in court.

He argued that the petitions are rooted in dissatisfaction with court rulings rather than constitutionally recognised removal grounds such as mental incapacity, bankruptcy, corruption, or gross misconduct.

"A reading of the petitions shows they are grievances with court determinations. They are not removal grounds. What is being invited is a review of rulings and judges through the back door," he said, citing the Supreme Court's November 7, 2023, doctrine of necessity ruling and Civil Appeal of 2023 in Tuju’s matter.

Deputy Chief Justice Philomena Mwilu, through advocate Winnie Bett, fully supported Koome's submissions, adding that allowing the JSC to entertain complaints rooted in judicial reasoning would fundamentally undermine the institutional design of the judiciary.

"This matter is not about whether the Supreme Court was right or wrong. It is about institutional design," Bett said.

"The JSC cannot be converted into an appellate forum. Disagreement with a judgment is not misconduct."

She also argued that the JSC’s disciplinary regulations for superior court judges have not been properly enacted, rendering any proceedings procedurally defective.

Advocate Ken Nyaundi, representing Supreme Court Judge Isaac Lenaola, noted that there was no factual basis for requiring his client to respond to a complaint linked to Dari Limited, which had confirmed Lenaola was not involved in the dispute.

Other judges, including Smokin Wanjala, Lady Justice Njoki Ndung’u, and Justice William Ouko, echoed the argument that Article 160 shields judges from being questioned over their conduct in court, and Article 163 entrenches the Supreme Court as the final arbiter.

The Judicial Service Commission strongly opposed the consolidated petitions, urging the High Court to dismiss the cases.

Through counsel Issa Mansur, the commission said it had acted strictly within its constitutional mandate under Article 173, which empowers it to receive and investigate complaints against judges.

"The applications before this court are premature, misconceived, and an abuse of the court process. We urge the court to dismiss them and allow the Judicial Service Commission to discharge its constitutional mandate," Mansur said.

He added that judicial intervention at this stage is unnecessary, as the JSC will review complaints and determine if they meet the threshold for certification or dismissal.

The hearing began before the three-judge bench on Friday.

In a poignant moment before proceedings commenced, the court observed a minute of silence in honour of Justice Mohammed Ibrahim, who had been listed as the seventh petitioner but passed away on December 17, 2025.

“Consequently, proceedings shall progress with the seventh petitioner as discharged. Counsel for that party is excused from further participation,” Justice Mwamuye said.