Former Law Society of Kenya (LSK) President Nelson Havi has questioned the High Court’s jurisdiction in cases filed by Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, and Supreme Court Judge Mohamed Ibrahim against the Judicial Service Commission (JSC).
In a preliminary objection, Havi argues that the High Court lacks the power to interfere in JSC proceedings regarding the removal of Supreme Court judges. He asserts that, under Article 168(8) of the Constitution, judges facing removal must first submit to the JSC’s jurisdiction. He contends that Koome and Mwilu’s petitions do not raise a constitutional cause of action and are speculative in nature.
Justice Bahati Mwamuye, presiding over the matter, heard arguments on jurisdiction after both Mwilu and Ibrahim obtained court orders blocking JSC proceedings against them. The court had directed parties, including the JSC and Attorney General, to file responses, but the JSC had yet to do so.
Advocate Issa Mansour, representing the JSC, assured the court that a response was drafted and awaiting approval. He promised to file it by Tuesday next week. Meanwhile, Justice Lawrence Mugambi is set to rule on the empanelment of a bench in a related case filed by Koome.
The cases before the High Court are likely to be consolidated due to their interrelated nature. Justice Mwamuye scheduled a hearing on March 19 to address the empanelment and jurisdiction issues, with a ruling expected on March 27. The orders blocking the JSC from proceeding with the petitions against the judges remain in effect.
Koome argues that the JSC lacks constitutional authority to entertain complaints against Supreme Court judges, as it has no power over judicial decisions made by the apex court. She claims that allowing the JSC to hear the matter would undermine judicial independence.
The contested petitions were filed by Havi and lawyer Christopher Rosana, with Havi alleging gross misconduct and Rosana challenging a Supreme Court decision banning Ahmednasir Abdullahi’s law firm. Mwilu and Ibrahim maintain that these cases are based on judicial rulings and lack merit.
The outcome of this legal battle will set a crucial precedent on the judiciary’s independence and the JSC’s mandate in disciplinary proceedings against top judges.
