Chief Justice Martha Koome (left), Deputy Chief Justice Philomena Mwilu (top), Justices Isaac Lenaola and Ibrahim Mohamed. (Bottom row) Justices Smokin Wanjala, Njoki Ndung'u and William Ouko.
The proposed removal of Supreme Court judges, including Chief Justice Martha Koome, over alleged misconduct has taken a new twist after one of the judges asked for expansion of the High Court bench, a move that triggered protests from proponents of the ouster motion.
Suspecting the application is intended to frustrate the legal proceedings and the constitutional process at the Judicial Service Commission (JSC), the petitioners’ lawyers yesterday questioned who will name the bench.
This is because the ouster motion is against the entire seven-judge bench - Ms Koome, Deputy Chief Justice Philomena Mwilu, Mohammed Ibrahim, Njoki Ndung’u, Smokin Wanjala, Isaac Lenaola and William Ouko - who are all at the High Court fighting the JSC process.
However, according to Article 165(4) of the Constitution, appointment of judges to an expanded bench is an administrative duty of the Chief Justice.
The application was filed by Justice Lenaola on grounds that the case raises complex substantial issues of law concerning the constitutional process of a judge’s removal from office.
If granted, the case file will be forwarded to Ms Koome to appoint judges of an uneven number in the expanded bench.
Lawyers Nelson Havi and Ahmednasir Abdullahi, for the petitioners, opposed the application and questioned how the matter will be handled if the court grants the wishes of Justice Lenaola.
Former LSK president Nelson Havi.
During the court session, the pair became irritated when the presiding judge, Lawrence Mugambi, directed that the application be given a priority when the hearing of the case starts on March 28, 2025.
“This is a deliberate delay. We know the Chief Justice is the one to empanel the bench and is a party in these proceedings. You have fallen into a trap and you know it is not possible,” said Mr Abdullahi reacting to the court’s directions.
“It is not fair. You are making it difficult for these proceedings. We refuse to agree,” Mr Havi reacted before lawyer James Oduol for Justice William Ouko interjected and told them, “Let us maintain decorum and deal with the matter in a civil manner”.
The advocates also pushed for expeditious hearing and determination of the dispute urging the court to issue strict timelines.
In his application for empanelment of the bench, Justice Lenaola through lawyer Ken Nyaundi says the case raises complex substantial issues of law.
He wants the case certified by the High Court as raising a substantial question of law that needs to be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.
“The petition seeks clarity on the constitutionality of the complainants’ scheme to abolish the Supreme Court in the guise of complaints against all the seven judges. It also seeks to determine whether the seven Supreme Court judges would be entitled to approach the High Court for redress since a judge aggrieved by a removal decision is entitled to approach the Supreme Court. In this case the seven judges would be appealing to themselves -an absurdity,” says lawyer Nyaundi.
The ouster petitions originated from a unanimous decision of the Supreme Court judges in January last year to ban lawyer Abdullahi over his social media posts regarding the top court.
The ban also extended to other lawyers working at Mr Ahmednasir’s law firm – Ahmednasir Abdullahi Advocates LLP.
Lawyer Ahmednasir Abdullahi.
This triggered complaints by Mr Havi and lawyer Christopher Rosana alleging incompetence and misconduct by the entire bench. The duo separately asked the JSC to remove the entire bench from office.
The third ouster petition concerns the Supreme Court’s ruling on a commercial dispute pitting former Cabinet Secretary Raphael Tuju’s Dari Limited and the East African Development Bank over a Sh4.5 billion loan.
The case was handled by a five-judge bench comprising Mwilu and justices Ibrahim, Wanjala, Ndung'u and Ouko.
During the upcoming proceedings of the case filed by the judges against JSC, the High Court is scheduled to hear Mr Tuju’s application to cross-examine Mwilu and Justices Ouko and Ndung’u over details of their documents filed in court over the ouster bid.
Additionally, five lawyers working at Ahmednasir’s law firm have also applied for striking out of the case filed by the judges, saying the court lacks the authority to hear the dispute.
Justice Lawrence Mugambi.
“Allowing the petition to proceed would undermine the very fabric of constitutional supremacy, it would imply that parties can, through creatively conjured litigation, supplant clear constitutional edicts with their own preference,” says the lawyers in their court filings.
Justice Mugambi extended the interim orders stopping the JSC proceedings on the proposed removal and also directed that the five cases be consolidated.
