Chief Justice Martha Koome has petitioned the High Court to suspend any further proceedings pending at the Judicial Service Commission that are related to petitions calling for her removal from office.
In court documents, filed before the Milimani Law Courts, Koome argues that the JSC lacks the authority and the constitutional mandate to entertain any such claims against her, or any judges of the Supreme Court.
She asserts that the power to remove a judge is narrowly defined by the Constitution, specifically under Article 168(1) of the Constitution.
The cited constitutional provisions for judicial removal include mental or physical incapacity, bankruptcy, incompetence, or gross misconduct.
Koome argues that none of these grounds are applicable in her case, and stresses that the JSC has no jurisdiction over decisions made by the Supreme Court in the lawful exercise of its constitutional role as outlined in Article 163.
The two petitions pending before the JSC against the Supreme Court judges were filed by city lawyer Nelson Havi and Christopher Rosana.
Havi’s petition challenges the conduct of Supreme Court judges during the March 2022 BBI judgment delivery.
Meanwhile, Rosana’s petition addresses the JSC’s ban on the Ahmednasir Abdullahi law firm, a move she (Koome) believes warrants judicial scrutiny.
Koome states she has since been served with notices to respond to the petitions which she says has the effect of undermining the Apex Court as well as the integrity of the constitution.
"Both petitions are based on decisions made by the Supreme Court or the exercise of powers conferred on the Supreme Court by the Constitution," she says.
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.
According to the court documents, the JSC has forwarded both the Rosana petition and Havi petition to the CJ with instructions that she respond in 21 days.
The 21 days lapse on Monday, February 24.
"Consequently there is a very real and imminent risk that the JSC will forward both petitions to the President for constitution of a disciplinary tribunal to determine the same," says Koome.
Koome argues that should she or other Supreme Court judges be subjected to a disciplinary process initiated by the JSC, the damage to be sustained would be irreversible.
She has asked the court to intervene and issue an order suspending any further proceedings before the JSC touching on the petitions.
The orders she says are necessary to maintain the sanctity of the judiciary and aimed at facilitating the orderly functioning of the court.
