Havi challenges High Court’s jurisdiction in CJ Martha Koome case against JSC

Former Law Society of Kenya (LSK) president Nelson Havi has filed a preliminary objection at the High Court, contesting the court's jurisdiction over a petition filed by Chief Justice Martha Koome.

Havi’s objection centres on a petition that questions the process of Chief Justice Martha Koome's appointment and potential removal by the Judicial Service Commission (JSC).

The former LSK president argues that under the Constitution of Kenya, such matters fall outside the court's jurisdiction.

In the notice of the preliminary objection, Havi argues that the High Court lacks jurisdiction to examine matters related to the appointment or removal of the Chief Justice, citing specific provisions of the Kenyan Constitution.

"The High Court has no jurisdiction to inquire into proceedings by the 1st Respondent for the appointment to and/or removal from office of the Chief Justice of the Republic of Kenya under Articles 166(1)(a) and 168(4), 5(a), and (8) of the Constitution of Kenya."

Havi's objection further emphasises that the Chief Justice, as a state officer heading an arm of government, is not considered "a person" for the purpose of filing a petition in the High Court for the enforcement of rights under the Bill of Rights.

"The Petitioner, being the Chief Justice of the Republic of Kenya, the head of an arm of the government and a state officer is not considered 'a person' for the purposes of filing a petition for enforcement of the Bill of Rights under Articles 22(1) and (2) of the Constitution of Kenya, nor for instituting a petition for the enforcement of the Constitution under Articles 258(1) and (2)," Havi said.

Proper remedy for Koome

According to Havi, the proper remedy for the Chief Justice, in this case, is to follow procedures outlined under Article 168(8) of the Constitution, which requires the Chief Justice to submit herself to the jurisdiction of the Judicial Service Commission before seeking recourse in the courts.

"The petitioner is bound to pursue the only remedy available to her under Article 168 (8) of The Constitution of Kenya and ought first, to subject herself to the jurisdiction of the 1st respondent in any event, and the High Court therefore, lacks jurisdiction over the petitioner's action," he stated.

Havi also criticised the petition, describing it as "hypothetical and speculative."

He argued that the Constitution does not allow the Chief Justice to sue the JSC, of which she is the chair, or the Attorney General regarding matters of constitutional crisis or alleged suspension.

"The action does not raise a reasonable cause of action for a constitutional petition, and the High Court lacks jurisdiction over this matter. This petition is an abuse of the court process," Havi said.

"The filing of this action on the same 3 grounds relied upon in the notice of preliminary objection renders the petition sub-judice and an abuse of the process of the court," he said.

Koome's petition was filed in response to what she perceives as potential issues in the process of her appointment or removal from office.

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The case is now before the High Court which will decide whether it has the authority to hear the petition or whether the matter should be handled within the JSC framework.

Earlier, LSK condemned the JSC for its failure to address corruption, promote transparency, and protect the independence of the Judiciary.

This criticism came as concerns about the JSC's effectiveness in overseeing the judicial process continued to grow.

LSK emphasised the need for reforms within the JSC to enhance accountability and ensure the integrity of the judicial system.