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Why two Supreme Court judges, 10 others could be shown the door soon

Twelve judges, including two from the Supreme Court, could be staring at the sack after the Judicial Service Commission (JSC) concluded that the complaints against them meet the threshold for removal of a judge.

Subsequently the JSC, during its recent seven-day induction for new members and retreat in Mombasa, formed two committees to look at complaints and present their reports to a meeting of the full commission.

The two committees, headed by Justice Aggrey Muchelule and Mercy Deche, both JSC members, are expected to begin their tasks within 14 days, which is by February 1.

All the JSC members, save for Chief Justice David Maraga and Attorney-General Paul Kihara, are in either of the two committees. Each committee is handling six complaints.

Other JSC members are Deputy Chief Justice Philomena Mwilu, Prof Tom Ojienda, Emily Ominde, Patrick G. Gichohi, Prof Olive Mugenda, the Attorney-General, and Felix Koskei.


The Court of Appeal will now have a representative in the JSC as the standoff with the executive and Parliament over the proposed vetting of Justice Mohamed Warsame was sorted out.

Judge Warsame will be sworn in after the High Court on Friday held that he does not have to be vetted by Parliament.

High Court Judge Enoch Chacha Mwita ruled that President Uhuru Kenyatta violated the Constitution by failing to appoint Justice Warsame.

“In any case, an administrative action such as the President’s appointment cannot hold a constitutional process hostage,” he said.

The complaints against the judges include being too temperamental, laziness and absenteeism, conflict of interest, unexplained delayed judgments and other forms of misconduct.

Chief Registrar of Judiciary Anne Amadi declined to delve into the matter but suggested that there is nothing unusual to discipline judges.

“JSC routinely deals with complaints against judges. Some cases are frivolous while others may raise concern. Those without merit are dismissed while those that require further inquiry are heard and determined. Details cannot be divulged,” said Ms Amadi.


According to our source, who could not speak on record discussing internal JSC deliberations, the commission had received complaints against 56 judges out of which substantive issues were raised in 40.

Of the 40, JSC dismissed 28 complaints because they were frivolous including some by parties who had lost their cases and were using the complaints to get back at the judges who handled their matters.

While the particular complaints against the two Supreme Court judges are still not yet known, a number of petitions seeking the removal of some of them have been filed, more so in the immediate aftermath of the September 1, 2017 decision that nullified the August 8 presidential election.

The executive director of Angaza Empowerment Network, Derrick Ngumu, had filed a petition against Deputy Chief Justice Philomena Mwilu and her colleague, Justice Isaac Lenaola, claiming they had met with Nasa leaders. There was also at least one against Chief Justice Maraga.


Before the elections, there was a petition by former Law Society of Kenya CEO Apollo Mboya against Justices Jackton Ojwang’ and Njoki Ndung’u.

In the petition, Mr Mboya was accusing the two of gross misconduct for participating in an illegal strike to stand in solidarity with their former colleagues, retired Deputy CJ Kalpana Rawal and Philip Tunoi over retirement age.

Although JSC had found the two culpable and reprimanded them, Mr Mboya has argued that JSC has no such powers to reprimand and once they found the two culpable, naturally JSC would have proceeded to recommend to the President to set up tribunals to investigate them.

The other 10 non-Supreme Court justices are drawn from the High Court, Employment and Labour Relations Court, Milimani Commercial Court as well as a number from various High Court stations outside Nairobi.

“There is a judge who sat in a matter which he had handled when he was an advocate,” our judiciary source said.


Another judge is accused of mishandling a land matter at his previous station.

The High Court has had most of the complaints, including the petition by activist Okiya Omtatah against Justice Monica Mbaru whom he accuses of having taken sides in the Kenyatta University succession saga reportedly after the judge’s husband was hired as a lecturer by the university.

The decision to move the 12 complaints to the next level comes on the backdrop of JSC trying to deal with numerous corruption and abuse-of-office cases against judges and magistrates.

The commission in 2018 dismissed nine magistrates. There are pending hearings for another 12 magistrates who were referred to the commission by the defunct Judges and Magistrates’ Vetting Board (JMVB).

The board, which was chaired by Sharad Rao, could not conclude their cases in set timelines.


Once the two committees complete their assignments, they will present their reports to the full panel of JSC, which will then determine whether to recommend to the President formation of tribunals to investigate the matters.

Depending on the reports of the two committees, the complaints could trigger the formation of many tribunals at the same time in the history of the Judiciary.

The JSC meeting in Mombasa started on January 6 and participants came back on January 13.

The meeting was an induction workshop for the recently appointed commissioners Paul Gichohi, Mr Kihara and Koskei Felix.

Prof Olive Mugenda, who is bereaved, is the only member who did not attend the meeting which also doubled up as a retreat for the commissioners.

Besides the matter of the complaints against judges, the meeting also resolved to begin the recruitment of 41 judges — 11 for the Court of Appeal, 10 for the Employment and Labour Court and 20 for the Land Court.

“The high numbers for the Land Court was necessitated by a backlog in the court, especially in Nairobi and Thika, the latter which also has the highest rate of filing new land cases,” our source added.

Already, advertisements for some of the vacancies have been placed in the local dailies and many more are expected in the coming days.