Supreme Court judges have received backing from the Federation of Women Lawyers in Kenya (FIDA), which argues that it is illegal to simultaneously remove more than two judges from office.

The lobby argued in its case filed before the High Court that the Constitution does not anticipate a vacuum at the apex court.

FIDA sued the Judicial Service Commission (JSC) and the Attorney General.

FIDA’s lawyer, Caroline Oduor, said the agency had opted to sue to block an imminent crisis.

According to her, the apex court is uniquely placed in the country’s governance structure, in which any interference will weaken judicial independence.

“The petition filed herewith challenges the unconstitutional, unlawful, and procedurally flawed process initiated by the respondent that is likely to result in the simultaneous removal of more than two (2) or possibly all the seven (7) judges of the Supreme Court of Kenya. If this process is allowed to proceed, it will paralyze the Supreme Court, undermine the rule of law, and violate constitutional principles such as judicial independence, fair administrative action, access to justice, and the right to fair hearing,” argued Oduor.

She further said that the move is meant to create an autocracy, adding that with heightened political instability in the country, it is perceived that there is an intent to bring in’ politically correct judges.’

“In addition to rendering the Supreme Court inoperative, the process initiated by the first respondent will trigger a chain of constitutional crises, including disruption of the constitutional checks and balances, potentially enabling unchecked power in the Executive and or the Legislature, thereby eroding democratic principles and paving the way for autocratic governance,” she stated.

Ms Oduor asserted that failure to intervene would lead to a catastrophe. She claimed that the events of January 24, 2025, were equivalent to a takeover of the judiciary, as the commission held a meeting without Chief Justice Martha Koome and Supreme Court judges’ representative Justice Mohammed Ibrahim and decided that all should respond.

FIDA’s Executive Director, Anne Ireri, in her supporting affidavit, argued that the  Supreme Court can only function with a minimum of five judges.

According to her, to remove more than two judges or all of them would essentially mean that the Judiciary has no apex judicial authority. Ireri added that it would also affect the right of Kenyans to access justice.

“The Supreme Court plays a critical role in constitutional interpretation, appellate jurisdiction, and advisory opinions. Its inoperability would mean that Kenyans seeking legal redress, particularly in matters of constitutional and national importance, will have no recourse,” said Ireri.

FIDA wants the court to block any action against the senior judges.

Already, the CJ, her deputy Philomena Mwilu and Justices Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko have separate cases against the commission and the AG, seeking to quash its demand that they should respond to claims filed by different complainants.

In the separate cases, the seven senior judges argue that the JSC cannot entertain petitions that amount to a review of their judgments or rulings.