Supreme Court judges now sue JSC to fight off removal attempts

Supreme Court judges have now moved to court to fight petitions filed to remove them from office.

Chief Justice Martha Koome, her deputy Philomena Mwilu and three others have filed separate cases before the High Court against the Judicial Service Commission (JSC).

Koome, Mwilu, and Justices Njoki Ndung’u, Mohamed Ibrahim and Isaac Lenaola are seeking to quash petitions filed by lawyer Nelson Havi, former Rarieda Member of Parliament Raphael Tuju, and lawyer Ahmednasir Abdullahi’s associates, who want them out of office over alleged gross misconduct and incompetence.

The CJ asked the High Court to quash the decision requiring her to respond to the two petitions Havi and Ahmednasir’s associates filed.

In her separate case, Njoki asked the court to find that the commission has no power to entertain petitions that would amount to reviewing a judge or magistrate’s judgment or ruling.

Mwilu has also objected to the commission.

Constitutional crisis

Mwilu argues that the authority to determine whether a judge had violated a litigant’s rights can only be determined by the High Court.

The three were separately responding to an order by JSC requiring them to answer to the petitions revolving recusal from a case filed by Tuju’s firm, Dari Limited’s against East Africa Development Bank (EADB), and a decision to ban Ahmednasir and his law firm from appearing before them.

Justice Koome told the court that petitions filed to remove her alongside her six colleagues were meant to create a constitutional crisis by creating a vacuum in the apex court.

While terming the decision by JSC to order her to respond to the removal petitions, Koome argued that it was an overreach of its powers.

The CJ further said the commission was illegally sitting as an appellate court of the Supreme Court.

The CJ is the head of the Judiciary and is also the JSC chair.

She said that after studying the petitions, the Supreme Court and all cases before it will be suspended.

“This will have attendant (and grave) consequences on the state organs and the people of Kenya,” she said in her case filed by senior lawyer George Oraro. Justice Koome filed her case before High Court Judge Lawrence Mugambi.

She argued that the Constitution’s framers did not anticipate a situation where the country could operate without the apex court.

“I verily believe that by dint of two petitions, the first respondent has purported to initiate a situation through which a constitutional vacuum can be created merely by recommendation of a tribunal to investigate all Supreme Court judges. This situation is contrary to the Constitution and the expectation of the people of Kenya,” argued the CJ.

Justice Koome said the commission is playing to lawyer Nelson Havi’s tune.

She said that Havi had posted on his X account his intent to ‘bomb’ the Supreme Court and destroy everything.’

Judge Njoki also filed a separate case before the same court.

Njoki sued JSC, arguing that the commission cannot review court decisions to determine whether a judge should be removed from office.

In her case filed before High Court Judge Lawrence Mugambi Friday, the senior judge said that the petitions filed by lawyers Ahmednasir Abdullahi and Nelson Havi were a concerted effort to demonise the Judiciary and weaken it.

Justice Njoki, in her case, took on Havi and Ahmednasir for their online campaign against the top court.

According to her, Havi’s grievance before the commission borders on a warning by the apex court to lawyers against disparaging and casting aspersions against judges on social media.

The senior judge said Havi filed JSC Petition No. 3 of 2025 against all Supreme Court judges. According to her, Havi invited the commission to review their judgment and caution advocates and parties before them from using social media to muddy the court.

Nevertheless, she said that Havi and the other two lawyers mentioned in the judgment were not barred from appearing in the apex court.

On Ahmednasir, she said that the court unanimously agreed to ban him from litigating before them and, therefore, had to recuse themselves in cases where he was appearing for litigants.

According to her, the city lawyer had on several times besmirched the top court in his tweets.

She further stated he has consistently claimed that four judges of that court are corrupt, but he has never given the names or adduced evidence.

Individual’s right

In the meantime, DCJ Mwilu argues the commission had no power to hear petitions based on a litigant’s violation. According to her, no law dictates that a judge be removed from office based on a complaint that he or she infringed an individual’s right while exercising his or her judicial powers.

The DCJ said that one can approach the High Court if aggrieved.

“The Commission unequivocally lacks the jurisdiction to address allegations concerning violations of the rights as outlined in the instant complaint. Such complaints must be directed to the High Court, as explicitly outlined in Articles 165 (3) (c) and supported by Articles 22, 23, and 258 of the Constitution of Kenya.  Violation or infringement of an individual’s rights does not of itself constitute a ground for removing a judge from office, as specified in Article 168 (1) of the Constitution,” said Justice Mwilu.

She argued that the complaints against the apex court were an attack on the independence of the Judiciary.