The High Court has quashed notices issued by the Judicial Service Commission (JSC) to seven Supreme Court judges over complaints seeking their removal, ruling that the commission failed to conduct the required preliminary assessment before requiring the judges to respond.
A three-judge bench comprising Justices Charles Kariuki, Lawrence Mugambi and Bahati Mwamuye declared the JSC communications, notices and directions unconstitutional, legally ineffective, null and void. Justice Mugambi delivered the judgment on behalf of the bench.
The case involved Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu and Supreme Court Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Susana Ndung’u, Isaac Lenaola and William Ouko. The complaints included a petition filed by former Law Society of Kenya President Nelson Havi.
The court found that the JSC had not demonstrated that the notices dated January 27, 2025 were issued following a lawfully convened meeting of the commission.
It also held that the commission had failed to demonstrate that it had undertaken the preliminary assessment required to determine whether the complaints disclosed any of the constitutional grounds for removal of a judge under Article 168(1)(a) to (e).
The bench said preliminary assessment is an important safeguard for judicial independence and fair administrative action under Article 47 of the Constitution.
The court further found that the notices communicated the complaints and required the judges to respond within 21 days without sufficiently setting out the factual allegations or identifying the specific constitutional grounds on which removal was being sought.
Justice Mugambi said a judge could not fairly be required to respond to an unrefined collection of allegations without being informed of the precise constitutional ground on which those allegations were based.
The court also faulted the JSC for proceeding against the seven judges collectively and in an omnibus manner rather than handling the complaints in accordance with the Constitution and the law.
The judges had challenged the JSC's handling of the complaints, arguing that the commission should first determine whether the allegations met the constitutional threshold for removal before requiring them to respond.
The JSC had maintained that a subcommittee considered the complaints and made recommendations that were subsequently adopted on January 24, 2025. However, the court noted that minutes, deliberations or resolutions supporting that process had not been produced.
The High Court consequently issued an order of certiorari quashing the January 27, 2025 notices and the related communications, decisions, actions and proceedings arising from the three petitions.
It also issued an order of prohibition barring the JSC, its agents or anyone acting on its behalf from taking further action based on the notices or complaints founded on the same set of facts.
The court, however, affirmed that the JSC retains its constitutional mandate under Article 168 to receive and consider complaints seeking the removal of judges.
It held that the exercise of that mandate must comply with the Constitution, the Judicial Service Act and principles of fair administrative action. The court also rejected the argument that Article 168 places JSC decisions beyond judicial review, holding that the High Court can determine whether the commission has acted within its constitutional and legal limits.
The ruling therefore ends the proceedings arising from the impugned notices while leaving the JSC's constitutional mandate to consider complaints against judges intact, subject to the required legal safeguards.
