The only constitutional remedy for a judicial error is an appeal, but when the Constitution has made a court the final one, there is no further appeal and certainly no disciplinary shortcut.
That , in essence, was the argument mounted Friday before a High Court bench hearing a constitutional challenge by the country’s top most senior judges against complaints before the Judicial Service Commission.
Senior Counsel George Oraro, appearing for Chief Justice Martha Koome before Justices Charles Kariuki, Lawrence Mugambi and Bahati Mwamuye at the Milimani Law Courts, posed what he described as the unavoidable constitutional paradox at the heart of the matter.
“Where a judge makes an error, the only remedy known to the law is an appeal. But the Constitution is clear that the Supreme Court is the final court. The JSC has no power to review or correct decisions of the Supreme Court.”
The argument was directed at complaints lodged with the JSC by former Law Society of Kenya President Nelson Havi, Senior Counsel Ahmednasir Abdullahi and former Cabinet Secretary Raphael Tuju, all of whom have raised grievances arising from Supreme Court proceedings involving them or their clients.
Oraro submitted that the complaints, instead of identifying grounds for removal recognised under Article 168 of the Constitution such as mental incapacity, bankruptcy, corruption or gross misconduct, are entirely anchored on dissatisfaction with judicial determinations.
He told the bench that the JSC is being invited to do something the Constitution does not permit: interrogate the quality, reasoning and outcome of decisions made by the apex court, thereby converting a disciplinary body into a de facto court of appeal over the Supreme Court.
“What is being invited is a review of rulings and judges through the back door.”
To drive home the structural danger of this, Oraro drew on comparative constitutional jurisprudence, citing Justice Brown and Justice Jackson in the US Supreme Court’s Brown v. Allen, where the court articulated the principle that it is not final because it is infallible, it is infallible because it is final.
He argued the same principle applies in Kenya under the constitutional architecture.
Oraro also cited the final report of the Constitution of Kenya Review Commission, which formed the intellectual scaffolding for the current Constitution, noting that the report explicitly stated that the people of Kenya wanted a judiciary independent and free from interference by any person or institution, both operationally and institutionally.
He further invoked the Ugandan Supreme Court precedent, which, he said, affirmed that judicial review applies to judicial acts, not to the courts themselves, and that it is an improper exercise of judicial power, not mere legal error, that can ground accountability.
Critically, Oraro argued that when a decision is made by a properly constituted Supreme Court bench, sitting as five judges as required by the Constitution, it is not the decision of any individual judge but the decision of the court as an institution.
To hold individual judges accountable through the JSC for that institutional decision, he submitted, is constitutionally irrational.
He told the bench that allowing the JSC to proceed along this path would not only violate the principle of finality,derived from the Latin maxim interest reipublicae ut sit finis litium (it is in the interest of the state that there be an end to litigation), but would also effectively allow the JSC to do what the Constitution reserves only for the Supreme Court itself: the power to overrule its own decisions.
“If that is not what the people of Kenya want, the task is to amend the Constitution. It is not to go through the JSC to remove all the judges of the Supreme Court.”
DCJ Mwilu, through advocate Winnie Bett, reinforced the argument with a warning about what she called institutional design, the deliberate constitutional choices that define what each organ can and cannot do.
“This matter is not about whether the Supreme Court was right or wrong. It is about institutional design. It is about whether this institution permits, at its very inception, what would fundamentally undermine that design.”
Bett also submitted that the absence of properly enacted disciplinary regulations for superior court judges further invalidates the JSC’s proceedings.
She argued that without such regulations, the commission is acting outside a lawful framework, and subjecting the judges to that process is an injury in itself.
The JSC’s counsel Issa Mansur countered that the commission had acted within its constitutional mandate to receive and investigate complaints and urged the court to allow the process to run before judicial intervention.
“The applications before this court are premature, misconceived, and an abuse of the court process. We urge the court to dismiss them and allow the Judicial Service Commission to discharge its constitutional mandate.”
The court reserved its decision on the petitions to quash the complaints and halt proceedings.
