Court suspends JSC proceedings against Supreme Court judges

Supreme Court/FILE

Deputy Chief Justice Philomena Mwilu is among four other Supreme Court judges who have secured a court order suspending the proceedings before the Judicial Service Commission (JSC) that seek her removal from office.

Similarly, Supreme Court Judge Mohamed Ibrahim also obtained an order before Justice Bahati Mwamuye to halt the JSC proceedings.

The judge directed that both Mwilu and Ibrahim serve the respondents and interested parties—including the JSC, advocates Nelson Havi, Ahmednasir Abdullahi, and Dari Limited—by close of business today.

These parties are required to file their responses by March 3.

"Pending inter-parties hearing and determination of the applications, a conservatory order is hereby issued suspending the JSC petitions," said the Judge.

He directed the matters to be mentioned on March 6 to confirm compliance and to take further directions.

Justice Isaac Lenaola and Justcie William Ouko, who had also filed a separate application, have also obtained orders suspending the JSC proceedings. Justice Lawrence Mugambi, in issuing the order directed the matters be mentioned on March 5 for further directions.

Koome, Mwilu and Ibrahim, Ouko and Lenaola are the latest judges to obtain orders suspending the JSC proceedings.

Justice Isaac Lenaola, who has also filed a separate application, states that the JSC must avoid complaints that invite it to analyse a judgement or ruling in order to determine the alleged incompetence of the Judge who authored the decision.

In seeking to suspend the JSC hearings, Lenaola criticised the JSC for failing to protect judicial officers from “persistent vilifying speeches” disguised as “exercising freedom of expression.”

He proceeds to state that the deliberate campaigns and attacks against the judges constitute a serious attack on the independence of the judiciary and the integrity of the judicial process.

"The actions threaten to abolish the Supreme Court established by law by seeking removal of the entire bench of seven judges through unconstitutional means," he remarks.

Similarly, Justice William Ouko, in his own application, asserted that the JSC—entrusted with safeguarding judicial independence—should not be the institution subjecting judges to public ridicule and unfounded speculation.

"Its actions contradict its constitutional duty, creating a precedent where judges can be publicly discredited without due process, in violation of their inherent right to dignity," he states.

Chief Justice Martha Koome had obtained a similar order on Friday last week before Justice Lawrence Mugambi. Koome, in her application, 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 their constitutional role.

The Judge makes reference to two petitions pending before the JSC against the Supreme Court judges..one is filed by city lawyer Nelson Havi and Christopher Rosana.

Koome said 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.

She adds that they contain broad, unsubstantiated allegations that Havi has linked to rumours and gossip arising from his interactions with Senior Counsel Ahmednasir.

"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.