Kenya's High Court has nullified the Judicial Service Commission's (JSC) removal proceedings against the Chief Justice, Deputy Chief Justice, and other Supreme Court judges. The court's decision was based on procedural defects and unconstitutional notices issued by the JSC. A three-judge bench, comprising Justices Charles Kariuki, Lawrence Mugambi, and Bahati Mwamuye, ruled that the JSC failed to properly screen complaints before issuing removal notices.
The complaints, lodged under Article 168 of the Constitution, were filed by Christopher Rossana of Dari Limited and former Law Society of Kenya president Nelson Havi. The JSC had issued notices to the Supreme Court judges relating to three separate complaints. However, the High Court bench emphasized that the JSC must first conduct a threshold assessment to filter out frivolous or malicious allegations before a judge is required to answer.
The court found that no evidence was presented that such a screening had taken place, and the notices lacked any reference to a preliminary assessment. Furthermore, the JSC meeting on January 24, 2025, which authorized the notices, was not lawfully convened because the Chief Justice and a Supreme Court representative were excluded without notice or an opportunity to recuse.
The judges also ruled that the JSC cannot act as an appellate body to review the merits of judicial decisions, limiting its investigative role to evidentiary matters concerning gross misconduct or incompetence. The court noted that several of the complaints involved disputed legal issues still pending before courts, and the commission exceeded its mandate by seeking to review those decisions.
The High Court clarified that Article 168 removal petitions must be directed at individual judges, rejecting the omnibus approach taken against the Supreme Court as a whole. The court set aside the notices and proceedings arising from JSC Petitions 72 of 2024, 3 of 2025, and 35 of 2024, and barred any further action on those defective complaints.
In a related petition (E358 of 2025), the bench noted that the Constitution does not forbid simultaneous removal proceedings against multiple Supreme Court judges, but the JSC must consider the need to preserve the court's functionality. The decision also declared the January 24 meeting invalid, reinforcing the requirement for lawful convening and proper notice to all affected judges.
The High Court's decision has significant implications for the independence of the judiciary in Kenya. The court's ruling underscores the importance of following due process and respecting the Constitution in the removal of judges. The JSC will need to revisit its procedures for handling complaints against judges and ensure that it acts within its mandate.
Key points
- The High Court nullified the JSC's removal proceedings due to procedural defects and unconstitutional notices.
- The JSC failed to conduct a threshold assessment to filter out frivolous or malicious allegations before issuing removal notices.
- The court's decision has significant implications for the independence of the judiciary in Kenya.
