Chief Justice Koome appoints three-judge bench to hear petitions on removal of Supreme Court judges
The petitions were filed by former Law Society of Kenya President Nelson Havi and 15 others.
A three-judge bench has been constituted to hear and determine petitions challenging the removal of Chief Justice Martha Koome and other Supreme Court judges from office.
The bench was constituted following a High Court ruling that the case filed by Supreme Court judges challenging the hearing of petitions seeking their removal raises substantial legal issues that warrant consideration by more than one judge.
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The bench comprises Justices Charles Kariuki, Lawrence Mugambi, and Bahati Mwamuye.
When the parties appeared before High Court Deputy Registrar Emmie Chelule, she confirmed that Chief Justice Koome had empanelled the three-judge bench to hear and determine the petitions aimed at blocking their removal.
Chief Justice Koome, who also serves as the president of the Supreme Court, along with Justices Njoki Ndung'u, Isaac Lenaola, William Ouko, and Smokin Wanjala, had moved to the High Court to contest the Judicial Service Commission's (JSC) handling of the removal petitions.
The petitions were filed by former Law Society of Kenya President Nelson Havi and 15 others.
The empanelment followed a ruling two weeks ago by Justice Mugambi, who ordered the file to be transmitted to the Chief Justice for the constitutionally required appointment of an uneven bench.
He said that the petitions raised serious constitutional questions that must be heard by more than one judge.
"I find all the consolidated petitions herein raise serious constitutional issues to be determined by a bench," ruled Justice Mugambi. "I therefore order the transmission of the file to the Chief Justice for empanelment of an uneven bench of judges."
Although Chief Justice Koome is one of the petitioners in the case, Justice Mugambi emphasised that she remains the only official constitutionally mandated to empanel a bench under Article 165(4) of the Constitution.
Similarly, the High Court temporarily barred the JSC from proceeding with the removal cases, pending the hearing and determination of the suits.
However, various parties, including Senior Counsel Ahmednasir Abdullahi, lawyer Havi, former MP Raphael Tuju and his children, the JSC, had raised concerns about a potential conflict of interest, arguing that Koome's appointing judges to hear a case in which she is a petitioner is ethically problematic.
Despite the opposition, Justice Mugambi upheld the legality of the Chief Justice's role in the process, stating: "Once the Court certifies that the matter raises a substantial question of law under Article 165(4), the consequence is coached in mandatory terms. The Constitution directs that such a matter shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.'"
He added that constitutional interpretation must focus on enforceability."One of the tenets of constitutional interpretation is that it should give effect to its provisions, not render them inoperable. The Constitution empowers only the Chief Justice to empanel an uneven number of judges under Article 165(4).
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