How Supreme Court Judges beat JSC in removal petitions battle

The Judicial Service Commission (JSC )'s failure to hold a preliminary assessment meeting and to entertain a blanket petition to remove all judges except Justice Smokin Wanjala led to the collapse of a plot that haunted the apex court.

High Court Judges  Charles Kariuki, Lawrence Mugambi and Bahati Mwamuye unanimously ruled that the commission had violated the Constitution by requiring the  Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu and Justices Mohammed Ibrahim (deceased), Njoki Ndung’u, Isaac Lenaola and William to respond to the petitions without first assessing if they met the Constitutional threshold.

They observed that although JSC waived decisional immunity, it could not rise above the Constitution; hence, the court had powers to look into whether it had violated the supreme law.

The bench ruled that the meeting of January 24, 2025 was unlawful as the commission did not explain how the Chief Justice and Supreme Court representative were left.

Justices Kariuki, Mugambi, and Mwamuye insisted that the commission should not have been a conveyor belt of petitions filed by litigants; instead, it ought to weigh both the threshold and facts before sending the same.

The bench headed by Justice Kariuki quashed the notices and declared the notices to the judges null and void.

They, however, found that although the Constitution does not prohibit parallel proceedings before the commission and courts, the commission cannot step into the shoes of judges to settle the merits of the cases, just as judges cannot weigh in on the commission’s decisions.

The court found this would end litigants using the commission to influence or intimidate judges. They noted that Dari Limited, linked to former Minister Raphael Tuju had cases before courts while at the same time its directors were pursuing removal of the Supreme Court Judges. The Judges said this overlap was not incidental.

“Parties must not apply parallel proceedings to jeopardize the others. Dari was also a party over the same issue of Supreme Court judges' recusal and which was before the commission. The overlap was not incidental. In these circumstances, we are concerned that the Commission cannot be an avenue for a litigant to correct judicial decisions. They ought to be reviewed or appealed. The Commission cannot be used as an appellate jurisdiction,” they said.

In the case, the CJ told the High Court that petitions filed to remove her alongside her colleagues are meant to create a constitutional crisis by creating a vacuum in the apex court.

While terming the Judicial Service Commission's decision to order her to respond to the removal petitions an overreach of its powers, she argued it was an overreach.

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 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 in which 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  CJ.

Justice Koome said the commission is playing into lawyer Havi’s tune. She said that he had posted on his X account his intent to ‘ bomb the Supreme Court and destroy everything.’

The senior judge asserted that Havi's commentary was not new. She argued that the lawyer, along with his colleague Ahmednasir Abdullahi, had, for years, carried out a systematic and deliberate campaign to undermine her authority as the CJ and president of the Supreme Court.

“The accusations, insults and tirades made have been far and wide-reaching, from bribery, corruption, and inconsistency in the Supreme Court’s judgments. Notably, in all these years, there has been no iota of evidence produced to accompany these hysterical sentiments of two advocates of high standing,” she said.

The CJ argued that the petitions were blanket, while the JSC decision to have her respond was vague because it identified the ground(s) for her removal from office.

“Indeed by failing to disclose the grounds for the proposed action in the letters dated January 27,2025, I have been effectively left to grope in the dark and speculate as to what accusation I am required to respond to thereby eroding my fundamental rights enshrined in Article 27,47 and 50,” she said.

According to her, if the commission recommends that the President William Ruto appoint a tribunal to investigate all Supreme Court Judges and all are removed, they will have nowhere to appeal. This, she said, would be a denial of the right to a fair trial.

“In this case, however, the two petitions will effectively clog my rights to access justice and fair hearing pursuant to articles 48 and 50, respectively, as I will be denied the right to appeal from the decision of the tribunal appointed under Article 186,” argued Koome.

According to her, the commission was ordered in 2022 to formulate and publish procedures and investigative processes within 90 days from January 17, 2022.

Nevertheless, she argued that it has failed to do so.

Koome said that the commission entertained petitions while courts were handling cases related to those filed after Ahmednasir and his associates were banned. She said this amounted to subjudice.

The CJ sued JSC and the Attorney General. She also named Havi, and Ahmednasir’s associates as interested parties in the case. Those named are Christopher Rosana, Asli Osman, Peter Muchoki, Irene Jelahat, Esther Amboko, Cohen Kyampene and Khadijah Said.

Others are Elizabeth Wangui, Tony Kiprotich, Mohamed Billow, Jorith Muthoni, Omar Athman, Hilda Mulwa and Jemimah Aileen.

Deputy Chief Justice Philomena Mwilu in her separate case argued that the Constitution does not contemplate a blanket petition. According to her, the law of the land requires each judge to carry their own burden. Instead, he said, it is illegal to demand a judge be removed from office based on a unanimous decision with his or her colleagues.

The DCJ said the commission erred by requiring her to respond to petitions filed by lawyer Nelson Havi, knowing well that he and Ahmednasir Abdullahi had repeatedly attacked the apex court on social media without providing proof of their allegations.

Supreme Court Judge Njoki Ndung’u also filed a separate case before the same court.

She sued JSC, arguing that the commission has no power to review court decisions to determine whether a judge should be removed from office.

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

Justice Njoki in her case took on Havi and Ahmednasir for his 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 was inviting the commission to review their judgment and cautioning advocates and parties who were before them from using social media to muddy the court.

Nevertheless, she said, 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 in which he was appearing for litigants.

According to her, the city lawyer had severally 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.

She said that Havi's petition to remove the judges, based on the decision to ban Ahmednasir and their social media comments, was an indicator of a concerted effort to muddy the Supreme Court and intimidate judges.

Njoki took issue with the commission’s deputy chair Isaac Ruto’s announcement on the number of petitions filed before it for the removal of the apex court judges. She said that it pointed to the preferential treatment of Havi.

She said that the publicizing of the petitions on Havi’s social media amounted to prosecution in a public gallery in a bid to create the perception that the judiciary was weak and unable to handle cases competently.

According to her, the commission ought to have flagged the petitions because they made blanket allegations against all Supreme Court judges.

The Judge argued that the commission had no regulations on processing petitions before it.

Dari Limited’s case against East Africa Development Bank (EADB) in different fora simultaneously. She argued that it was unfair for him to seek to compel the Supreme Court to lift its recusal before the High Court while at the same time petitioning to have the judges removed.

Justice Njoki sued JSC and the Attorney General. She also named Dari, S.A.M Limited, Tuju, Mano Tuju, Alma Tuju, Yma Tuju and Nelson Havi as interested parties.

Further, Justice Isaac Lenaola argued that each judge is appointed individually and that any petition ought to be made against each judge individually rather than as a collective issue.

“ The removal of a judge from office can only be justified where shortcomings complained of are of such a serious nature to destroy confidence in the judge’s ability to properly perform his duty,” argued Lenaola.

According to him, gross misconduct and misbehaviour are expressions of extreme negative conduct that would warrant removal from a judge’s office.

The other issue is whether parties ought to rush to the commission in a challenge of a court order.

Justice Ouko also sued the commission. He said that the only options the Constitution offers are to move to a higher court or seek a review. According to the judge, the commission is not empowered to reconsider, review, set aside proceedings, give directions on how a case can proceed, or even issue judgments or rulings.

Justice Ibrahim passed before his story was heard. In his case, he said he saw the petitions as personal grudges, targeted especially at the CJ.

He argued that this is evident in Havi’s writing about the CJ and the Supreme Court judges