The High Court has ruled that it can review how the Judicial Service Commission (JSC) handles petitions the remove judges, including those filed against Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, and all judges of the Supreme Court.
High court, however, said it cannot determine whether the allegations made against judges are valid on their merits, as that responsibility belongs to the JSC or a tribunal established under Article 168(8) of the Constitution.
The case challenged the JSC’s handling of complaints lodged under Article 168 of the Constitution seeking the removal of the Chief Justice, the Deputy Chief Justice and the entire Supreme Court bench.
The decision was delivered by a three-judge bench comprising Justices Charles Kariuki, Lawrence Mugambi and Bahati Mwamuye.
In its judgment, the court said it has the power to examine whether the JSC acted within the Constitution and the law, and whether it followed fair procedures in handling such petitions.
“The High Court has jurisdiction under Article 165 (3) (d) (ii) and 165 (6) of the Constitution to examine the constitutionality, legality and procedural fairness of the JSC actions. However, the High Court cannot determine the substantive merits of allegations made under Article 168 of the Constitution which is a responsibility entrusted to JSC or a Tribunal appointed under Article 168 (8) of the Constitution,” the judgment read.
The petitions sought the removal of Chief Justice Koome, Deputy Chief Justice Mwilu and Supreme Court judges.
High Court Says JSC Must Screen Complaints Before Sending Them to Judges
The judges held that the High Court has the authority to examine whether the JSC acted within the Constitution and the law, including whether it adhered to the requirements of procedural fairness.
The bench found that the JSC failed to demonstrate that it had conducted a preliminary assessment of the complaints before asking the affected judges to respond.
According to the court, such a review is a critical safeguard because it ensures complaints that do not meet the constitutional threshold are filtered out early and do not proceed against judges.
“JSC must undertake preliminary threshold review of the allegations made against a Judge before requiring a Judge to respond to a complaint. This process protects Judges from malicious and frivolous complaints by ensuring only complaints disclosing grounds under Article 168 (1) (a) to (e) of the Constitution are processed,” the judgment stated.
The bench noted that no material had been presented to show that the required screening process had been undertaken before notices were issued to the judges.
It also raised concerns over the January 24, 2025 meeting that authorised the notices, finding that the commission had not demonstrated that the session was lawfully convened.
JSC Cannot Act as an Appeal Court
The judges also addressed complaints linked to decisions rendered by the Supreme Court and other courts.
The bench noted that JSC cannot use the judicial removal process as a substitute for an appeal or review by questioning whether a court arrived at the correct legal or factual conclusion in a case.
“JSC cannot operate as appellate or alternative forum for reviewing factual or legal merits of judicial decisions. In rare and limited circumstances, where the conduct of a Judge is in question, JSC may inspect a decision strictly as evidentiary material to verify allegations of gross misconduct, incompetence, or other grounds for removal,” the court held.
According to the judgment, several complaints before the commission were founded on disputed legal issues and judicial determinations, some of which remained active before the courts.
The judges found that such matters fell outside JSC’s disciplinary mandate and should not have advanced beyond the preliminary assessment stage.
High Court also examined whether a single removal petition could be used to target multiple Supreme Court judges.
While emphasizing that participation in collegial decision-making does not shield a judge from accountability, the bench held that the constitutional framework envisages the removal of judges on an individual basis rather than through collective or omnibus petitions.
Consequently, the court declared notices issued in relation to JSC Petitions 72 of 2024, 35 of 2024 and 3 of 2025 unconstitutional, null and void.
The judges quashed the notices and related proceedings and prohibited the JSC from taking any further action arising from the defective notices, petitions, and complaints based on the same facts.
Court Allows Simultaneous Proceedings Against Several Judges
The court, however, stopped short of finding that the Constitution prevents removal proceedings from being initiated against several Supreme Court judges at the same time.
In Constitutional Petition E358 of 2025, the judges held that the Constitution does not prohibit proceedings against several, or even all, judges of the Supreme Court simultaneously.
The court acknowledged that such proceedings could create operational difficulties for the country’s highest court, including affecting its ability to sit and hear cases.
However, the judges said the Constitution does not require complaints against judges to be filed or handled one at a time.
The bench said the JSC should nevertheless exercise institutional prudence when handling such complaints to ensure that the Supreme Court remains functional.
The judges also rejected arguments that the temporary absence of commissioners affected by such proceedings would automatically render the JSC improperly constituted.
According to the court, a commissioner’s failure to attend a meeting is an operational matter and does not amount to a constitutional vacancy.
The commission can continue carrying out its mandate provided its meetings are properly convened, and the required quorum is met.
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