Justice Lawrence Mugambi
The High Court has ruled that the case by Supreme Court judges challenging the hearing of petitions for their removal from office raises substantial issues of law and should be determined by more than one judge.
Consequently, Justice Lawrence Mugambi has referred the file to Chief Justice Martha Koome to empanel a bench of uneven number of judges to hear and determine the petitions.
Supreme Court judges led by Koome, who is the president
of the court, and Justices Njoki Ndung’u, Isaac Lenaola, William Ouko, and Smokin
Wanjala had moved to the High Court challenging the hearing of the petitions by
the Judicial Service Commission.
And even before their case could be heard, Justice Lenaola made an application for the matter to be referred to the CJ for empanelment of a bench.
Justice Mugambi had, on March 5, directed that he would give priority to the application, much to the protestations of interested parties led by lawyer Nelson Havi.
The interested parties are the petitioners who want
the Supreme Court judges removed from office by the JSC. They include Havi,
former CS Raphael Tuju and lawyers mainly from the firm of Ahmednasir Abdullahi,
which is banned from appearing before the apex court.
Havi and Ahmednasir had opposed the application for empanelment of a bench, saying the Chief Justice, who is supposed to pick the judges of the bench, is a party in the case.
This, they argued, would create conflict of interest.
In his application, Justice Lenaola argued that the petitions for their removal were founded on the challenge to the merits of decisions made by the apex court.
He argued that JSC requiring a judge to respond to such a complaint amounted to interference with judicial independence.
He said the case for the removal of all Supreme Court judges was of immense public interest, complex and raises novel points of law that ought to be heard by more than one judge.
In his ruling on Friday, Justice Mugambi said he had found the application to be raising substantial issues of law.
“Once the court certifies that a matter raises a substantial question of law under Article 165 (4) of the Constitution the consequence of that finding in coached in mandatory terms: “shall be heard by an uneven number of judges being not less than three, assigned by the Chief Justice.”
In his submissions against the application, senior counsel Ahmednasir Abdullahi had warned the court against referring the matter to the Chief Justice.
However, Justice Mugambi said judges do not take orders or directions from anyone while discharging their judicial duties.
“This court would like to reiterate that the fact that the Chief Justice will assign judges is not to say the judges will be at her beck and call,” Mugambi said.
He said judges have a constitutional duty and moral obligation to uphold their oath of office of discharging justice based on the assessment of facts and conscientious understanding of the law without fear, favour, affection or ill will.
He said the solemn duty of judges is fidelity to the law, a basic tenet that every judge understands.
“It is therefore untenable to imagine that judges assigned to hear the matter by the Chief Justice are subject to her control and that the Chief Justice will direct the outcome of the petition,” Mugambi ruled.
