The battle to save the seven Supreme Court judges heightened yesterday with Deputy President Kithure Kindiki warning that attempts to remove them is a threat to judicial independence.

On a day that Supreme Court judges Philemona Mwilu (DCJ), Mohamed Ibrahim, Isaac Lenaola and William Ouko got a reprieve after the High Court temporarily stopped their removal, Prof Kindiki waded into the matter with a caution that ousting them threatens the rule of law.

“The Chief Justice and the Supreme Court judges will be defended not because of their ethnicity but because the attempt to bring down an entire Supreme Court for its decisions undermines the independence of judges, threatens the rule of law and fatally injures the underwriter of our democracy…” Kindiki posted on his X handle.

Kindiki’s statement and the High Court stay orders came on the eve of a planned meeting by the Judicial Service Commission (JSC) to look into the issues and make a decision on the way forward.

Chief Justice Martha Koome, who chairs JSC, can neither chair nor attend today’s meeting because she is one of the judges to be investigated.

The JSC deputy chairperson is Isaac Ruto.

Yesterday, High Court judge Bahati Mwamuye issued the stay orders on the proceedings in which several petitioners including lawyer Nelson Havi, Raphael Tuju among others are seeking to remove the Supreme Court judges from office for gross misconduct.

“Pending the inter partes hearing and determination of the Petitioner/Applicant’s Notice of Motion Application dated 21/02/2025, a conservatory order be and is hereby issued staying and/ or suspending JSC Petition No. 35 of 2024 [ Dari Limited & 5 Others -vs- Hon. Chief Justice Martha Karambu Koome & 6 Others] and JSC Petition No. 03 of 2024 [ Nelson Havi -vs Hon. Chief Justice Martha Karambu Koome & 6 Others]”, the order reads.

The court directed the petition to be served to both parties and mention the matter on March 6 for further directions.

So far, six of the Supreme Court judges have acquired injunctions stopping the JSC proceedings, save for Justice Smokin Wanjala who is yet to move to court.

Last week, Justice Koome and Njoki Ndung’u were the first to get the High Court’s protection barring any proceedings against them.

In the applications filed in court, the judges say that the independence of the Judiciary is a cornerstone of the rule of law and democratic governance.

“The removal of a judge is a serious action that must adhere strictly to the Constitution’s requirements. It is not intended to be used for political purposes, personal grievances, or on trivial and unfounded grounds”, they argue.

Further, the judges say when addressing complaints seeking the removal of a judge, the JSC must ensure that judicial independence is upheld. Judges must be free to make decisions based on the law, free from external pressures or influence.

“The rigorous constitutional procedures for removal are designed to safeguard this independence. Without such protection, judges could be unfairly removed, leading to undue pressure to issue decisions that appease certain parties, which undermines the rule of law.”

The court documents add that under Article 160(5) of the Constitution, judges are immune to personal liability for decisions made in good faith during the lawful performance of their judicial duties.

The judges maintain that the immunity ensures that judges can exercise their functions independently, based on their interpretation of the facts and the law.

They assert that Nelson Havi’s petitions, the Petitions by Partners and Associates of Ahmednasir, and the petition by Chistopher Rosana are about the merits of judgments.

They are primarily based on disagreements with decisions made by the Supreme Court, the High Court and the ELC.

“The petitions should be evaluated in light of the fact that mere disagreement with merits of judicial decisions does not meet the threshold for removal under Article 168 of the Constitution.”

The judges claim that the complaints presented in the petitions fundamentally concern decisions made collectively by all judges of the Supreme Court of Kenya, including themselves, in their official judicial roles. The matters encompass both ongoing and resolved litigation across various courts.

Furthermore, they state that the petitions contain broad, unsubstantiated allegations that the 2nd Interested Party(Raphael Tuju) has linked to rumours and gossip arising from his interactions with the 3rd Interested Party( the Kenya magistrates and Judges Association).

They say, it is essential to recognise that these claims lack a solid foundation as they are not supported by evidence.

“The JSC Petition is defective and amounts to a violation of the provisions of Article 168(4), to the extent that the same is inviting the 1st Respondent(JSC)to exercise a merit review of the decisions of the petitioner jointly with other judges of the Supreme Court,” they argue in court documents.

The judges aver that filing a petition inviting JSC to carry out a merit review of the Supreme Court decisions is tantamount to violation of Article 160(1) & (5) which protects the independence of the judiciary and exercise of judicial authority.

They indicate that Article 168 of the Constitution envisions a petition against an individual judge, setting out grounds upon which the said judge may be removed from office.

Additionally, the judges add that Article 168(1) of the Constitution enumerates grounds upon which a judge may be removed from office, which grounds cannot be collective. Therefore, the JSC petition is incurably defective and amounts to violation of the Constitution by purporting that gross misconduct or negligence can be joint/collective.

The judges say, by its very nature, gross misconduct cannot be collective and/or joint, it must be attributed to a single judge with unequivocal particularities or details to enable the individual judge sufficiently respond to the petition.

The judges claim that, contrary to provisions of Article 168(1) of the Constitution, the JSC petition does not, in any way whatsoever, particularise any grounds to enable the petitioner respond sufficiently.