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.

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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.

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