High Court puts judges' removal petitions on hold

The Supreme Court.[FILE,Standard]

The High Court in Nairobi has put on hold the Judicial Service Commission (JSC) by freezing all petitions for the removal of judges from office until it establishes guidelines and regulations for processing them.

High Court judges Roselyn Aburili, John Chigiti and Alexander Muteti said that since its inception in 2011, the Commission has lacked a clear procedure to process petitions filed against judges, despite being directed to do so by the Supreme Court in a case filed by former Judiciary Registrar Gladys Boss Shollei.

The three judges stated that it is unfair for the commission to subject judges to undefined procedures.

“Until the commission gazettes regulations contemplated under Section 47 of the Judicial Service Act, the Commission cannot lawfully proceed with the hearing of petitions against judges,” the bench, headed by Justice Aburili, ruled.

Adding that, “The Commission is prohibited from considering or hearing any of the pending petitions against judges until the regulations are in place,” the bench reiterated.

The case was filed by lawyer Kennedy Echesa Lubengo, who was challenging the JSC’s decision requiring High Court Judge Dorah Chepkwony to respond to a removal petition filed by lawyer Aldrin Ojiambo.

Lubengo’s arguments mirrored those raised by the Supreme Court judges—Chief Justice Martha Koome, her deputy Philomena Mwilu, and Justices Mohammed Ibrahim (deceased), Prof Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.

He contended that the commission lacked the authority to hear petitions based on the merits of judges’ or magistrates’ rulings.

According to him, JSC’s decision to require Justice Chepkwony to respond to the petition filed by Acord Law Advocates LLP set a dangerous precedent.

Lubengo argued that the commission was encroaching upon the Judiciary’s powers to determine cases without external interference.

“Public interest compels urgent intervention because allowing the unconstitutional proceedings before the first respondent to proceed will continue to embolden vexatious litigants to misuse the JSC as a pseudo-appellate forum to challenge judicial decisions, weaponise the JSC to threaten and undermine judicial independence, destabilise the judiciary, and foster a climate of intimidation against judges,” he said.

JSC , on the other hand, argued that it was premature for the court to intervene, stating that it had yet to determine the petition and ought to be allowed to decide whether to allow or dismiss it.

In cases filed by the Supreme Court judges, the Chief Justice contends that such petitions undermine the judiciary’s independence. She emphasised that judicial independence has two key elements: decisional independence and institutional independence.