Havi asks court to dismiss case challenging CJ Koome's removal

Former Law Society of Kenya president Nelson Havi wants the case filed by Chief Justice Martha Koome challenging his petition for her removal from office struck out.

In his objection and reply before the court, Havi claimed that the court has no powers to entertain cases from Judicial Service Commission (JSC) before it has determined a petition for removal of a judge.

According to him, the Constitution does not contemplate a scenario where JSC chair can sue it over a violation of a right.

“The action by the Petitioner does not raise a reasonable cause of action for a constitutional petition, the action is not justiciable but hypothetical and speculative. As the Constitution of Kenya did not contemplate that the Chief Justice of the Republic of Kenya as head of an Arm of the Government of the Republic of Kenya and a State officer would sue the Judicial Service Commission of which she is chair,” argued Havi.

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

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

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

Koome 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 Koome.

According to the CJ, 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 topmost judge asserted that Havi's commentary was not new. Koome 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 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 – a directive she noted JSC had failed to undertake.

“I am a member of the first respondent, and accordingly, I am aware that the first respondent is not merely a conduit through which complaints are channeled for onward transmission to a judge whom the complaint is filed. The first respondent is required to filter such complaints and communicate the nature and reasons for the proposed administrative action,” she stated.

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.