Former LSK President Nelson Havi has challenged the High
Court's power to inquire into proceedings filed before the Judicial Service
Commission (JSC) concerning the removal of Chief Justice Martha Koome and other
Supreme Court judges.
In a preliminary objection, Havi argues that the High Court
lacks the jurisdiction to entertain petitions filed by the Chief Justice (CJ)
and Deputy Chief Justice (DCJ) Philomena Mwilu, who are challenging the
proceedings before the JSC regarding their potential removal.
Havi asserts that the top Judges are obligated to pursue
the only remedy available to them under Article 168(8) of the Constitution,
which requires them to first submit to the jurisdiction of the JSC.
He contends that
Koome's and Mwilu's actions "do not provide a reasonable cause of action
for a constitutional petition, labeling the case as hypothetical and
speculative".
Appearing before Justice Bahati Mwamuye this morning, Havi
requested that the court address the issue of jurisdiction before considering
any other matters.
Justice Mwamuye is currently presiding over petitions filed
by Mwilu and Justice Mohamed Ibrahim.
Both parties had obtained orders blocking any proceedings
before the JSC related to their removal from office.
On Thursday, they were scheduled to confirm compliance with
directions issued by the court a week ago, when Havi raised the jurisdictional
issue.
Advocate George Murugu, representing the DCJ, told the Judge that they served their documents on interested parties, the JSC and the Attorney General.
However, Murugu noted that the JSC was yet to file a
response.
Advocate Issa Mansour confirmed that the response had been
drafted and was awaiting approval from the JSC.
He assured the court
that the response would be filed in court and served on the parties by
Tuesday next week.
The issue of the empanelment of a bench was also discussed.
Mansour indicated that Justice Lawrence Mugambi would rule on this issue in a similar petition filed by Chief Justice Koome.
The CJ, DCJ and Supreme Court Judges filed cases before
the High Court following the JSC proceedings.
The matters before different High Court judges
are interrelated and could be eventually consolidated.
Justice Mwamuye, after hearing from the parties, directed that they
appear in court on March 19, when they will argue on the issue of empanelment
and Jurisdiction.
They are to file and exchange the necessary paperwork ahead
of the hearing date.
A ruling on these matters will be delivered virtually on
March 27, and the orders blocking JSC from proceeding with the petitions against
the judges will remain in effect.
In the cases before the court, Koome has argued that the JSC
lacks both the authority and the constitutional mandate to entertain any claims
against her or any of the Supreme Court Judges.
She stresses that the JSC has no power over decisions made
by the Supreme Court while exercising its constitutional role.
The Judge makes reference to two petitions pending before
the JSC against the Supreme Court judges.
One was filed by city lawyers Nelson Havi and Christopher
Rosana.
Havi's petition accuses the judges of gross misconduct.
Meanwhile, Rosana’s petition is rooted in the controversial
ban imposed on the Ahmednasir Abdullahi law firm—a move she believes warrants
judicial scrutiny.
But Koome says both petitions are based on decisions made
by the Supreme Court or the exercise of powers conferred on the Supreme Court by the constitution.
Based on this, the CJ argues that the constitution does not
grant the JSC any powers to intervene or determine any issue on the exercise of
powers by the supreme court, whether judicial, functional or institutional.
"Allowing the JSC to entertain, hear or determine the
two petitions would amount to a mockery of justice as the constitution must be
applied in a manner that upholds public interest and ensures that the integrity
of the judiciary is not undermined," says Koome.
Mwilu, on the other hand, says the complaints presented in the challenged petitions concern decisions made collectively by all judges of the Supreme Court in their official judicial roles.
"These claims lack a solid foundation as they are not supported by evidence," she says.
Justice Ibrahim echoed the same sentiments, saying the JSC
doesn't have the jurisdiction to handle the petitions before it.
They have all obtained orders blocking the JSC proceedings.
