Supreme Court judges Mwilu and Ibrahim win first round against JSC

Deputy Chief Justice Philomena Mwilu and Justice Mohamed Ibrahim got a major reprieve in court on Thursday against the Judicial Service Commission (JSC).

High Court judge Bahati Mwamuye yesterday threw out an application filed by lawyer Nelson Havi, Ahmednasir Abdullahi’s associates, and Dari Limited, which is linked to former Jubilee Secretary General Raphael Tuju, to strike out the two cases filed by the senior judges.

At the same time, Justice Mwamuye allowed DCJ and Ibrahim’s application to have the cases certified as raising novel issues which required more than one judge to hear and determine.

In the case, Havi claimed that the court had no power to hear and determine the cases because they stopped a constitutional process before the commission.

However, Justice Mwamuye ruled that the commission was not immune from the court’s supervision.

“The preliminary objections are hereby dismissed with each party bearing own cost as they were not frivolous or vexatious,” he ruled,

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  Supreme Court judges Mwilu and Ibrahim win first round against JSC

In the case, the DCJ’s lawyer Julius Kemboy, urged the court to disregard Havi’s and Dari’s lawyer, Paul Nyamodi’s arguments. Kemboy argued that the case was not about the powers of the commission to investigate a judge and recommend removal.

Instead, he said the case was whether JSC can review a judge’s decision to determine whether the judge was incompetent or engaged in gross misconduct.

“There is no preliminary objection before you. They conflate the issues of judges and magistrates vetting board with the commission’s powers. The board was not the Judicial Service Commission, nor did it survive beyond one year. To conflate the same to argue that the JSC is the modern-day judges and magistrates vetting board is wrong,” he argued.

He said that Havi misinterpreted the law, as the CJ does not control judges’ decisions regarding hearings and determining cases.

“We ask the court to dismiss the preliminary objections and certify the case for empanelment of three judges or more,” argued Kemboy.

The Kenya Magistrate and Judges Association (KMJA) supported Justices Mwilu and Ibrahim. Its lawyer, Wathuta Mwangi, said the commission had failed to enact procedures for removing judges for three years.

“The petition is being processed by a commission which has violated a court order,” said Wathuta.

In the case, Justice Mwilu says the law does not give the JSC the power to remove a judge from office based on a unanimous decision by an entire bench.

She said that JSC knew it had no power to entertain the petitions and ought to have dismissed them.

“On the contrary, it is plainly obvious that the first respondent overlooked significant deficiencies in the petitions, automatically accepting them without fulfilling its constitutional obligation to verify that they disclosed grounds for removal as stipulated under Article 168(1) of the Constitution before requesting responses from the petitioner,” said Mwilu.

Mwilu further argued that the petitions for removal were still live before different courts; hence, they amounted to sub-judice and handling of the matter before another forum.

Justice Mwilu singled out Havi, saying it was clear.