Chief Justice Martha Koome and her Deputy Philomena Mwilu on Friday urged the High Court to quash complaints lodged before the Judicial Service Commission (JSC) seeking their removal over claims of gross misconduct and bias, in a high-stakes hearing that laid bare deep fault lines over the limits of judicial accountability in Kenya.
Appearing before a three-judge bench comprising Justices Charles Kariuki, Lawrence Mugambi and Bahati Mwamuye at the Milimani Law Courts in Nairobi, the Chief Justice and Deputy Chief Justice, alongside four other Supreme Court judges, mounted a spirited constitutional challenge against petitions filed by former Law Society of Kenya President Nelson Havi, Senior Counsel Ahmednasir Abdullahi and former Cabinet Secretary and Member of Parliament Raphael Tuju.
The six judges argued that the complaints amount to an unconstitutional attempt to use disciplinary machinery to interrogate, relitigate and effectively reverse decisions of the apex court, something they said the Constitution expressly forbids.
Through Senior Counsel George Oraro, Chief Justice Koome told the bench that the JSC is venturing into constitutionally protected judicial territory by purporting to examine the merits of Supreme Court rulings under the guise of discipline.
“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.”
Oraro submitted the complaint before the JSC amount to an invitation for the commission to sit on appeal over the country’s highest court, something he argued is both constitutionally impermissible and structurally dangerous.
“A reading of the petitions shows they are aggrieved grievances with court determinations. They are not removal grounds. What is being invited is a review of rulings and judges through the back door,” Koome said.
The Senior Counsel grounded his arguments in the constitutional history of the judiciary’s design, reminding the court that the framers of Kenya’s Constitution deliberately set the Supreme Court as the apex institution of judicial authority, with its decisions binding on all persons and state organs.
He cited the final report of the Constitution of Kenya Review Commission, which he said made clear that the people of Kenya wanted a judiciary independent and free from interference by any person or institution, principles later entrenched in Article 151 of the Constitution.
Oraro further submitted that judges are not liable for acts done in good faith in the proper performance of judicial power, and that Section 129 of the Evidence Act protects judges from being compelled to answer questions about their conduct in court.
He specifically cited the Supreme Court’s November 7, 2023 doctrine of necessity ruling and Civil Appeal No. E012 of 2023, matters related to Tuju’s dispute, arguing that the petitions effectively ask the JSC to correct those decisions.
He warned that accepting such an invitation would destroy the principle of finality that underpins the entire justice system.
Deputy Chief Justice Philomena Mwilu, through advocate Winnie Bett, associated herself fully with Koome’s submissions but added a distinct constitutional dimension, warning of the institutional dangers of allowing the JSC to entertain complaints rooted in judicial reasoning.
“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 told the bench that a careful reading of the petitions reveals that none of the complaints allege mental incapacity, bankruptcy, corruption or personal misconduct, the exhaustive constitutional grounds for removal under Article 168.
Instead, she said, the petitions challenge specific Supreme Court rulings and the reasoning adopted in reaching them.
“The JSC cannot be converted into an appellate forum. Disagreement with a judgment is not misconduct.”
Bett further submitted that the JSC’s regulations governing disciplinary procedures for superior court judges have not been properly enacted, rendering any proceedings before the commission procedurally defective and lacking a lawful framework.
“Without the requisite regulations, the commission is acting without a lawful framework. The injury to my client lies in being subjected to an ultra vires process.”
Advocate Ken Nyaundi, appearing for Supreme Court Judge Isaac Lenaola, told the bench there was no factual basis for requiring his client to respond to a complaint linked to Dari Limitedm, one of the companies associated with Tuju, noting that the company itself had expressly confirmed the judge was not involved in its matter.
“There is no need for the JSC to ask Justice Lenaola to respond where Dari Limited has clearly confirmed the judge did not handle the matter.”
The four other Supreme Court judges, Smokin Wanjala, Lady Justice Njoki Ndung’u, Justice William Ouko, and the late Justice Mohammed Ibrahim, also backed the challenge, arguing that Articles 160 and 163 of the Constitution shield judges from being questioned over their judicial conduct and entrench the Supreme Court as the final arbiter whose decisions are not subject to review by any other body.
Before proceedings commenced, the bench observed a minute of silence in honour of Justice Mohammed Ibrahim, who had been listed as the seventh petitioner but passed away on December 17, 2025, before the matter could be heard.
Justice Bahati Mwamuye, on behalf of the bench, announced: “Consequently proceedings shall progress with seventh petitioner as discharged. Counsel for that party is excused from further participation.”
The Judicial Service Commission pushed back strongly, urging the High Court to dismiss the consolidated petitions.
Through its counsel Issa Mansur, the JSC maintained it had acted within its constitutional mandate under Article 173 to receive and investigate complaints against judges.
“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 JSC noted that none of the judges had yet filed responses to the petitions, and argued that judicial intervention at this preliminary stage was inappropriate.
“These petitions are not the first options to be considered by the JSC. The commission will review the complaints, and if they meet the threshold, they will be certified and sent to the President. If not, they are dismissed.”
The judges are expected to rendered their decision in the coming weeks.
