Why Supreme Court wants a three-judge panel to hear its case against JSC

Lawyer Ishmael Nyaribo (left) congratulated the new Commissioner to the Judicial service Commission (JSC) Omwansa Ombati (second from right) as Chief Justice Martha Koome looks on at the Supreme court building on Tuesday, May 14, 2024. [Collins Kweyu, Standard] Judges and magistrates have supported Supreme Court judges' plea for Chief Justice Martha Koome to appoint a three-judge bench to hear their cases against the Judicial Service Commission (JSC). The Kenya Magistrates and Judges Association (KMJA), in court submissions filed by Kiragu Wathuta before High Court Judge Lawrence Mugambi, argued that the cases filed by Chief Justice Martha Koome, her deputy Philomena Mwilu, and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola, and William Ouko were unprecedented in the country. The association, led by Justice Stephen Radido, contended that the issues raised by the senior judges were also novel and required more than one judge to determine them. "We reiterate the same sentiments in the present petition and would add that the circumstances of this petition are unique and have never been determined before in our realm. The consolidated petition challenges the proceedings for removal of the petitioners from office as Judges of the Supreme Court before the first respondent on account of jurisdictional and procedural impropriety," argued Wathuta. According to the lawyer, the court will have to determine whether, by the JSC demanding that the judges reply, it was reviewing their decisions. At the same time, he said judges would also have to settle the question of judicial independence and whether they can be questioned without evidence of either graft or gross misconduct. "It is also a matter that requires the Court to examine whether the JSC can conduct a merit review of decisions from the Supreme Court. In our view, therefore, the issues in this Petition are of great public importance, novel and unique. The question as to whether Article 168 anticipates the removal of the entire bench of the Supreme Court and the attendant consequences have not been determined by any other Court and clearly raise substantial questions of the law," he said. KMJA further argued that the Chief Justice does not influence the appointment of judges to the bench. According to the association, the CJ merely implements orders by the High Court and leaves it to determine the case independently thereafter. He asserted that the head of the judiciary's role is purely administrative, which does not raise concerns about the impartiality of the judges. "Having expressed ourselves as above, we therefore conclude that the Petition before this Honourable Court raises a substantial question of law under Article 165(4) of the Constitution 2010 as to justify the empanelling of a bench of uneven number of judges of this Court being not less than three, to be assigned by the Chief Justice," argued Wathuta. This comes as Justice Lenaola said his case was a classic example of the JSC's failure to establish laws and procedures for processing petitions before it. Lenaola, in his submissions, argued that despite notifying the commission that he never sat in the battle between former Rarieda Member of Parliament Raphael Tuju and his company, Dari Limited, against East Africa Development Bank (EADB), the commission never recalled its directive for him to respond. He asserted that the blanket removal of the entire bench would create fear among judges and hinder their ability to hear and determine cases. Meanwhile, two of lawyer Ahmednasir Abdullahi's associates claimed the Supreme Court ban happened barely after they had started practising. Hilda Ndulu and Jemimah Aileen claimed they were admitted to the bar on November 29, last year. "It therefore beats logic why the 14th and 15th interested parties should suffer unbridled wrath of the petitioner in the above-mentioned unlawful ban," they replied. They urged the High Court to throw out the cases by the judges. The cases will be heard today.

Why Supreme Court wants a three-judge panel to hear its case against JSC

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Why Supreme Court wants a three-judge panel to hear its case against JSC

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