Explainer: What happens when a Supreme Court judge dies in office?

The late Judge Ibrahim Mohammed The death of Justice Ibrahim Mohammed has left a vacancy at Kenya's highest court, the Supreme Court, which is mandated to interpret the Constitution and hear presidential election petitions. Established in 2010 under Article 163 of the Constitution, the Supreme Court consists of the Chief Justice as president of the court, the Deputy Chief Justice, and at least five other judges. Justice Ibrahim's death now raises questions about how vacancies at the Supreme Court are filled and what happens when a sitting judge dies. When does a vacancy arise? A vacancy at the Supreme Court may arise through retirement, removal of a judge following a tribunal process, resignation, or death. In cases of retirement or removal, the Judicial Service Commission (JSC), which oversees judicial appointments, discipline, and administration, formally declares the position vacant and begins the recruitment process. The commission publicly advertises the vacancy and invites applications from qualified candidates. Applicants must have at least 15 years' experience as a superior court judge, a distinguished legal practitioner, or a public officer with extensive legal expertise. The JSC then shortlists candidates, conducts evaluations and interviews, and selects a nominee. The successful candidate's name is forwarded to the President in accordance with the Constitution. The President then submits the name of the nominee to the National Assembly for vetting by the Justice and Legal Affairs Committee (JLAC) and approval by the House. Once approved, the judge is sworn in by the Chief Justice before assuming office. "The President shall appoint the Chief Justice, the Deputy Chief Justice, and all other judges, in accordance with the recommendation of the Judicial Service Commission," the Constitution states. Supreme Court judges' tenure Under the Constitution, judges serve until the mandatory retirement age of 70. Death is the only circumstance that abruptly ends judicial service, unless a judge is removed from office or resigns. The Constitution requires the entire process of filling a judicial vacancy, from recruitment by the JSC to approval by Parliament, to be conducted publicly. Judges' Retirement Benefits Bill, 2025 But, uncertainty remains over the specific benefits and pension entitlements available to the family of a judge who dies in office, as these are governed by existing pension and retirement laws. Last month, Deputy President Kithure Kindiki said the government would fast-track legislation to guarantee retirement benefits for judges. "The law will be passed soon. This is a demonstration of goodwill by our administration. It is wrong for people who have served in the esteemed position of the judge to retire to poverty where they cannot even afford to pay their medical bills," the DP said. The Judges' Retirement Benefits Bill, 2025, approved by Cabinet in April, proposes a dedicated pension framework for superior court judges. Under the Bill, judges would contribute 7.5 per cent of their salaries to a retirement fund, with the government contributing 15 per cent. Kindiki said President William Ruto had committed to the legislation, which now awaits debate and approval in both Houses of Parliament. He added that the Bill had been drafted and presented to Cabinet on the President's instructions. If enacted, the proposed law would provide benefits to the families of judges who die in service, including a dependents' pension for a surviving spouse, portions of the pension for children depending on their number, a lump-sum death gratuity, and access to medical and other benefits under designated schemes. These benefits are provided for under existing public pension laws and would be enhanced by the proposed Judges' Retirement Benefits Bill, which is currently before Parliament.

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