High Court orders bench to hear Supreme Court vs JSC case on apex court's future

The High Court has directed Chief Justice Martha Koome to constitute a bench of an uneven number of judges to hear and determine a suit between the Supreme Court judges and the Judicial Service Commission (JSC), which will determine the existence of the Supreme Court.

Justice Lawrence Mugambi pointed out several issues raised by the seven Supreme Court judges who have sued the JSC to stop it from addressing multiple complaints against the apex court judges.

The bench will be tasked with determining issues raised by the Supreme Court judges against the JSC, which emanate from the JSC's intention to investigate the multiple complaints raised against the judges.

Among the issues is whether the JSC has a duty to undertake a preliminary appraisal of petitions seeking the removal of judges to ascertain if the grounds cited meet the threshold of the removal of a judge before requiring the judge to respond.

The concern by judges is that this scrutiny is necessary in order to weed out frivolous and vexatious complaints and protect the judges against the intimidation, distortion and pressure in the performance of their duties to safeguard judicial independence.

The judges have raised a red flag on unconstitutional attempts to abolish the Supreme Court.

Mugambi says part of what will be placed before the empanelled bench is a question of whether JSC can entertain complaints for the removal of judges where such complaints are also the subject matter of active cases before the courts, resulting in concurrent proceedings on similar facts before the JSC and in courts.

Also set for determination is whether the actions of the JSC in processing the petitions against the judges that challenge the merit of judicial decisions made by the Supreme Court judges undermine the principle of judicial independence.

Constitutionality of collective petition

It will also evaluate the constitutionality of a collective petition that seeks the removal of all judges constituting a court established by the constitution, whether it amounts to a real threat to unconstitutionally abolish the court.

Justice Mugambi was ruling on an application for expansion of the bench, which the JSC opposed, claiming CJ Koome was not suitable to determine the judges who would hear and determine a matter where she is among the petitioners. He allowed the application for the empanelment.

"I must now perform my singular duty of transmitting this consolidated petition to the Chief Justice for empanelment of an uneven number of judges to hear and determine (the case)," Justice Mugambi said.

"The parties are directed to appear before the Deputy Registrar of this court on May 6, 2025, to confirm if the Chief Justice has empanelled the bench."

Among the critical issues for the bench to appreciate is a concern raised by Justice Isaac Lenaola, who wants the High Court to determine the constitutionality of the process which permits the filing of petitions with the JSC.

Justice Lenaola points out that in the recent past judges have been a target of persistent inflammatory and prejudicial campaigns on the mainstream and social media platforms during the pendency of petitions for their removal to the extent that senior lawyer has threatened that any judge who will stop the ouster of the Supreme Court will also be targeted for removal.

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"The 3rd petitioner (Justice Lenaola) observes that these incidents are a serious attack on the independence of the Judiciary and integrity of judicial independence," notes Justice Mugambi.

Equally, Lenaola questions the competency of the JSC sitting to review the merits of verdicts of the Supreme Court as if it were a court of appeal, adding that he regrets that the JSC has failed to protect judicial officers from the vilifying speeches and commentaries disguised as freedom of expression.

Lenaola warns that the end result of the circus spearheaded by senior lawyers is unconstitutional abolishment of the Supreme Court under the guise of complaints filed against all the judges of the Supreme Court.