The High Court has stopped the Judicial Service Commission (JSC) from pursuing complaints seeking the removal of seven Supreme Court judges, finding that the commission did not follow the required constitutional procedure.
A three-judge bench comprising Justices Charles Kariuki, Lawrence Mugambi and Bahati Mwamuye quashed notices issued to the judges in January 2025, declaring them unconstitutional and legally ineffective.
The court found that the JSC had moved to the next stage of the removal process without first determining whether the complaints met the constitutional threshold for removing a judge.
Justice Lawrence Mugambi, who delivered the judgment, said complaints against judges must undergo proper preliminary scrutiny before the affected judges can be called upon to respond.
The judges had challenged the process, arguing that the JSC had not clearly identified the specific constitutional grounds for their removal or provided sufficient details of the allegations against each of them.
The High Court agreed, finding that the notices largely communicated the complaints without setting out the precise facts and constitutional grounds that the judges were expected to answer.
The court also questioned the JSC’s reliance on recommendations allegedly made by a subcommittee, noting that supporting minutes, deliberations and resolutions had not been produced to demonstrate how the commission reached its decision.
Among the complaints considered by the JSC was one filed by former Law Society of Kenya President Nelson Havi.
The court has now prohibited the JSC from taking further action against the judges based on the quashed notices or complaints arising from the same set of facts.
However, the ruling does not remove the JSC’s constitutional authority to receive and consider complaints against judges.
The bench affirmed that mandate but said the commission must exercise it within the safeguards provided by the Constitution, including the right to fair administrative action.
The court also rejected the argument that proceedings under Article 168 of the Constitution are beyond judicial scrutiny, holding that courts can review whether the JSC has acted within its legal and constitutional mandate.
