The High Court has dismissed an attempt to remove Chief Justice Martha Koome from her position as chairperson of the Judicial Service Commission (JSC), ruling that the Constitution provides a specific procedure for handling complaints against the Chief Justice and other judicial officers.
In a judgment that reaffirmed the constitutional mandate of the JSC, the court held that it lacked jurisdiction to entertain a petition seeking to suspend or remove the Chief Justice from the commission without first following the process outlined under Article 168 of the Constitution.
The petition had been filed by Rev. Bishop Brethren Nemwel Momanyi, who identified himself as the patron of the Gusii Regional Internally Displaced Persons (IDPs) Steering Committee and the IDPs Fraternity. He accused the JSC of failing to act on complaints he had lodged against two judges, whom he claimed had denied him and the people he represents justice over a period spanning 17 years.
Frustrated by what he described as inaction by the commission, Momanyi asked the High Court to remove Justice Koome as JSC chairperson and Chief Registrar of the Judiciary Winfridah Mokaya from her position as secretary to the commission. He further sought orders barring the two officials from carrying out their JSC functions while retaining their substantive offices.
However, the court found that such orders could not be granted because the offices are constitutionally protected and governed by a clear disciplinary framework.
"The proper way to remove the Chief Justice is by way of a petition to the Judicial Service Commission pursuant to Article 168 of the Constitution," the court ruled.
The judge further observed that Justice Koome's role as chairperson of the JSC is inseparable from her office as Chief Justice.
"The Chief Justice is the Chairperson of the Judicial Service Commission by virtue of holding the office of the Chief Justice. She cannot, therefore, be removed as the Chairperson of the Judicial Service Commission so long as she is the Chief Justice, as the two positions are inextricably linked," the ruling stated.
Lawyers representing the respondents argued that the case was improperly before the High Court because Momanyi had already filed a similar complaint before the JSC. Counsel Robert Kibor told the court that the petition amounted to an attempt to circumvent the disciplinary mechanism established under the Constitution.
The court agreed, holding that the petitioner had not exhausted the remedies available before the commission and that there was no evidence that those mechanisms were unavailable or ineffective.
"It is clear that there are other remedies the petitioner should have pursued. He can still prosecute his claim before the Judicial Service Commission," the judge said.
The court also invoked the doctrine of constitutional avoidance, emphasising that constitutional petitions should not be entertained where another legally established forum is available to determine the dispute.
In addition, the judge found that the petition lacked the precision required in constitutional litigation, saying it failed to clearly identify the alleged constitutional violations and the specific reliefs sought. The court also noted that the dispute was sub judice since similar proceedings were already pending before the JSC.
Concluding that the High Court had no jurisdiction to suspend either the Chief Justice or the Chief Registrar in the manner sought, the judge struck out the petition, describing it as "so clearly bereft of merit."
The decision leaves Rev. Momanyi free to pursue his complaints against the two judges through the Judicial Service Commission, the body constitutionally mandated to investigate allegations of judicial misconduct and recommend appropriate action.
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