Warsame faults new judicial review rules, warns of 'Koome-lization' risk

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Justice Mohamed Warsame has sharply criticised recent changes to Kenya’s judicial review framework, warning that new rules spearheaded by Chief Justice Martha Koome could distort a key constitutional safeguard.

Appearing before the Judicial Service Commission (JSC), Warsame took issue with the 2024 rules operationalising the Fair Administrative Action Act, cautioning that the reforms risk fundamentally altering how courts oversee administrative power.

He described the shift as the “Koome-lization” of judicial review, signalling concern that the changes may roll back gains made under the 2010 Constitution.

Tracing the evolution of judicial review, Warsame noted that before 2010, the doctrine was rooted in common law prerogative orders and narrowly focused on process.

“Pre-2010 was a common law regime concerned only with illegality, irrationality, and procedural impropriety. It was very restrictive, with strict timelines such as the six-month limitation and the requirement for leave under Order 53,” he said.

However, he said the promulgation of the 2010 Constitution transformed judicial review into a broader constitutional tool.

“Post-2010, judicial review is no longer just about process; it is a constitutional mechanism to enforce rights and fairness in administrative action,” Warsame said, citing Article 47 and the enactment of the Fair Administrative Action Act as pivotal reforms.

It is within this context that he warned the 2024 rules could narrow those constitutional gains, though he did not elaborate in detail on specific provisions.

His remarks come amid heightened scrutiny of the Judiciary’s leadership and internal accountability, with exchanges during the JSC session also touching on tensions among judges and public perception.

Responding to allegations that he is combative on the bench, Warsame dismissed criticism circulating online, including claims linked to fellow Supreme Court judge Njoki Ndung’u.

“It is very hurtful and demoralising to accuse a judge of an allegation which is not before him. There has been no complaint filed against me in the 22 years and four months I have served as a judge,” he said.

Ndung’u cited widely shared videos and public commentary about courtroom exchanges, prompting Warsame to insist that any claims against him should be formally presented. “I don’t know those things unless they are brought to my attention,” he said.

Ndung’u acknowledged she had previously been involved in a related matter that was sub judice at the time and has since been resolved. 

Warsame later struck a conciliatory tone, offering an apology. “If I may have in any way offended any judge, I must say that was an error on my side, and I apologise,” he said.

Warsame criticised how judicial performance is measured, describing current productivity metrics as inadequate, particularly in collegial courts. “The production metric is a complicated document; it doesn’t always measure the output of judges,” he said, calling for fixed benches in the Court of Appeal and more structured oversight.

He proposed administrative reforms, including appointing a registrar to monitor judicial productivity and instituting regular reporting to the Chief Justice.

“In the Judiciary, some of us are there out of conviction, not convenience or privilege. We must ask whether we are delivering for Kenyans,” he said.

Warsame argued that underperformance should be treated as an administrative rather than disciplinary issue, advocating supervision and accountability over punishment.

He also warned against potential institutional conflicts, terming as “very grave” any scenario in which the JSC might subject its chair - the Chief Justice - to a tribunal.

“The Chief Justice can approach the court as an ordinary person affected by a decision,” he said, underscoring the need to balance accountability with judicial independence.

On the Supreme Court, Warsame noted its unique role, saying it must provide consistent and reasoned jurisprudential direction. “It is not an ordinary court. It is a special court. People expect a reasoned, consistent jurisprudential direction from it,” he said.

He concluded by defending his record and vision for the Judiciary, pledging to uphold integrity and restore public confidence.