The High Court in Nairobi will on April 25 decide whether five cases filed by Supreme Court judges against Judicial Service Commission (JSC) over petitions to remove them from office will be sent to the Chief Justice Martha Koome for empanelment of a bench.
After hearing rival arguments on whether the CJ can constitute a bench where she is a party to the case, Justice Lawrence Mugambi on Friday directed that the parties appear before him in the new judiciary calendar for him to rule whether the issues raised are novel, requiring more than one judge to determine.
On one hand, the Kenya Magistrate and Judges Association (KMJA) and Katiba Institute supported the CJ and Justices Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, and William Ouko’s stand on the empanelment.
On the opposing side of the application were JSC, Lawyer Nelson Havi, Christopher Rosana, lawyer Ahmednasir associates, and former Rarieda Member of Parliament Raphael Tuju, his son and daughter, Alma Tuju and Yma Tuju.
In their separate submissions, the senior judges argued that the issues raised involved the Judiciary and were critical to its independence and operations. They asserted that the cases were also unique, as this is the first time in Kenya’s history that the Supreme Court bench seeks to enforce its rights and safeguard the apex court’s independence.
Justice Mugambi heard that the CJ’s role is merely administrative, as she will only enforce a court order.
Those who submitted in favour of empanelling an uneven number of benches included Senior Counsel Ochieng Oduol, who asserted that the court ought to find that the cases filed were unique and high public interest.
While supporting the application, KMJA lawyer Wathuta Mwangi argued that the cases questioned JSC’s processes and powers and needed more than one judge to hear and determine. He argued that the case sought to determine whether an entire bench could be removed from office through an omnibus petition.
JSC lawyer Issa Mansur orally opposed the case. He said that the issues raised were not peculiar adding that the jurisdiction of the court had also been questioned in the first place.
The commission argued that the cases filed were premature and required the judges to respond was a preliminary stage of screening the petitions. JSC asserted that the judges would be given a fair chance to rebut the allegations before a decision was made to dismiss the petitions or not.
