The Supreme Court has said the decision it made to ban Senior Counsel Ahmednassir Abdullahi from appearing before it cannot be reviewed before the High Court.
In opposing a case filed by the Law Society of Kenya (LSK), the Supreme Court through advocates Ochieng Oduol and Kamau Karori said the High Court does not have jurisdiction over the Apex Court.
Whether the decision is administrative or pretrial, the advocates told Justice Chacha Mwita that it cannot be subjected to a constitutional petition in the High Court as has been done by the LSK.
Oduol told the court that once the Supreme Court has decided on a particular issue and made an order or decision, it can not be supervised by the High Court.
“It will be a travesty of the order of things that a decision administrative or otherwise is made in the Supreme Court and one rushes to the High Court to interrogate that particular decision,” he said.
The High Court, he said, only has supervisory jurisdiction over subordinate courts.
“This court has no jurisdiction. The petition is a non-stata. The reliefs, and prayers being sought show they are a mischief in which petitioner seeks this court to engage in,” he said
In closing, Oduol urged the court to uphold the preliminary objection for lack of jurisdiction and the absolute immunity the Judges enjoy from proceedings.
In a swift rejoinder, Isaa Mansour representing Ahmednassir and members of his firm said the Judiciary doesn't enjoy absolute immunity as contended by Oduol and that such a concept is subject to checks and balances.
“Judicial immunity cannot be used where judiciary intends to use it as a shield from accountability ...this was a decision that affected the rights of the advocates,” he said
“What Karori and Oduol are saying is that regardless of what the Supreme Court or member of judiciary does there is absolute immunity even in matters done in bad faith...that's not what the constitution advocates for,” he added.
The immunity, he said, should not be given especially when it subverts the constitution.
Issa urged the court to dismiss the objection and allow the case to be heard.
In addition, the LSK through advocate Wilfred Nderitu said there is no dispute that Ahmednassir was not allowed to be heard.
This he said applied to those employed in his law firm.
“Kenya is a country governed by the rule of Law. The rule of law requires that no one shall be condemned unheard. Clearly, the principle of natural justice was violated in this case,” he said.
The Supreme Court in January this year communicated its decision to ban the senior counsel through a letter signed by Registrar L.M Wachira.
The letter said the counsel and his law firm should not appear before it over what it termed as years of consistently distasteful remarks made against the institution and its judges on various media platforms.
"In view of the foregoing, it is the decision of this Court, that henceforth and from the date of this communication, you shall have no audience before the Court, either by yourself, through an employee of your law firm, or any other person holding brief for you," the statement reads in part.
What followed was cases being filed at the High Court to challenge this ban.
One of them was filed by LSK. In its court papers, it said the decision by the Apex Court was unfair and unreasonable.
It further argued that the court condemned the senior counsel, his employees or any other person holding brief for him, without affording them an opportunity to be heard despite the ‘serious nature of the allegations’.
However, the Supreme Court, its Judges and the registrar have since filed an objection saying the High Court has no jurisdiction over the matter.
The court after hearing from all parties scheduled 21 June as the ruling date on whether it has jurisdiction over the matter.