The seven Supreme Court judges, including Chief Justice Martha Koome have got a temporary reprieve after the High Court in Narok yesterday stopped the Judicial Service Commission (JSC) from instituting any proceedings against them.

Consequently, the court stopped an earlier order by JSC requiring the judges to respond to petitions seeking their removal from office. The ruling gives a reprieve to Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Susana, Isaac Lenaola, and William Ouko as legal battles over judicial accountability and independence continue.\

The seven judges of the apex court had been required to respond to allegations accusing them of allegedly being involved in corruption, abuse of office and other malpractices while in the discharge of their duties.
JSC had asked the Supreme Court judges to respond to a petition that is seeking their removal from office over alleged gross misconduct and misbehaviour.

Senior snub
The petition was filed by former Law Society of Kenya (LSK) president Nelson Havi seeking the removal of the entire seven-judge bench. Havi, in the petition, accused CJ Koome of lack of leadership and direction as expected of a Chief Justice.

He took issue with the decision of the Supreme Court to bar lawyer Ahmednasir Abdullahi, Senior Counsel, from appearing before them. The ban, issued in January last year, also extended to other lawyers working at Ahmednasir’s law firm, Ahmednasir Abdullahi Advocates LLP.

A letter from the JSC Secretary and Judiciary Chief Registrar, Winfridah Mokaya, to Havi indicates that the commission was expecting a response from the seven Supreme Court judges.

“Please note that the response, once received, will be placed before the Commission for further deliberation and the decision of the Communication on the petition shall be communicated to you,” the letter reads.

Justice Charles Kariuki, sitting in Narok certified the matter as urgent and granted the applicant, Pariken Ole Esho, leave to file judicial review proceedings against the JSC, Dari Limited, and other respondents.

The orders will remain in force pending the hearing and determination of Ole Esho’s case, which concerns procedural impropriety.

According to the petitioner, the JSC lacks clear procedural rules consistent with constitutional principles for handling complaints against judges, magistrates and other judicial officers.

“JSC’s lack of procedure rules for handling such complaints enables the commission to act arbitrarily in directing the judges to respond to the petitions which do not meet the requisite threshold. Worse still, it creates a window for persons such as Dari Limited to direct the JSC on the process to adopt,” Ole Esho submitted.

In his decision, Justice Kariuki granted the applicant leave to seek an order of certiorari to overturn the JSC’s decision of January 27, 2025, which required the judges to file responses in petitions 35 of 2024, 72 of 2024, and 3 of 2025.
“Leave is granted to seek an order of mandamus directing the JSC to establish procedural rules that are consistent with constitutional principles before proceeding with disciplinary proceedings against judges”, the order reads.

Cease, desist
Additionally, an order of prohibition was issued to prevent the JSC from continuing proceedings against the Supreme Court judges until the judicial review case is resolved.

The court granted leave, effectively suspending the JSC’s directive until the substantive judicial review application is heard and decided.

The order originated from a Judicial Review case lodged by Mr Pariken Ole Esho at the High Court in Narok. The orders will remain in force pending the hearing and determination of Ole Esho’s case.

According to the petitioner, the JSC lacks clear procedural rules consistent with constitutional principles for handling complaints against Judges, Magistrates, and other judicial officers.

The petitioner asked the court to direct the JSC to desist from continuing, maintaining, and sustaining any such charges or proceedings against judges, magistrates, and other judicial officers until the said procedural rules are in place.

The development came a week after the JSC asked the seven judges to respond to the ouster petitions, which stemmed from the Supreme Court’s decision to ban lawyer Ahmednasir Abdullahi from appearing before the apex court.

Justice Kariuki added that in asking the judges to respond to the petitions, the JSC decision violated natural justice and fair administration action.

Additionally, an order of prohibition was issued to prevent the JSC from continuing proceedings against Supreme Court judges until the judicial review case is resolved.

The applicant must file the substantive application within 21 days of the ruling, with all parties served within 14 days.