Supreme Court/FILEThe High Court has held that the Judicial Service Commission (JSC) must conduct a preliminary assessment of complaints against judges before requiring them to respond as part of a removal process.
The finding was made by a three-judge bench comprising Justices Charles Kariuki, Lawrence Mugambi and Bahati Mwamuye in petitions challenging the manner in which the JSC handled complaints seeking the removal of all seven Supreme Court judges.
The consolidated petitions arose from complaints lodged before the commission, including one filed by former Law Society of Kenya President Nelson Havi concerning the judges.
The judges had argued that before subjecting a judge to the grave process of removal, the JSC was required to determine whether a complaint disclosed any of the grounds for removal set out under Article 168(1)(a-e) of the Constitution.
They argued that the complaints should provide enough details and establish a sufficient basis to warrant the removal process.
The judges questioned the JSC’s claim that a subcommittee had met, assessed the petitions, and made recommendations that the Commission adopted on January 24, 2025.
They contended that despite the commission’s assertion, no supporting materials or evidence had been presented to demonstrate that such an assessment had taken place.
The JSC, however, maintained that it had commenced processing the complaints.
According to the commission, Havi filed a petition seeking the removal of the seven Supreme Court judges, which was tabled before the JSC and subsequently served on Chief Justice Martha Koome for a response.
The commission said the Chief Justice was given 21 days to respond, with the stipulated period ending without a response.
The JSC further told the court that several other petitions had been filed and were subjected to a similar process.
Delivering the judgment on Friday on behalf of the bench, Justice Mugambi found that complaints against judges must undergo vetting before the removal process advances.
“It is our understanding and considered view that any complaint against a judge must undergo rigorous screening, including thorough initial stage vetting,” Justice Mugambi said.
He said unvetted complaints could undermine judicial independence, erode public trust and the rule of law, while also affecting a judge’s right to fair administrative action.
The court held that a preliminary assessment constitutes an important component of constitutional procedural fairness under Article 47, serving as a filter before complaints proceed further.
“We find and hold that a preliminary assessment constitutes a vital component of constitutional procedural fairness under Article 47, acting as an essential filter to safeguard integrity and individual rights,” Justice Mugambi said.
The judge said the issue was not whether the commission was entitled to require the judges to respond.
Instead, it was whether it had first considered the complaints and established that they raised valid grounds for removal under the Constitution.
Justice Mugambi noted that the notices issued to the judges merely communicated the complaints and required responses within 21 days.
He found that the notices did not identify the factual allegations with sufficient particularity or specify the precise constitutional grounds upon which the complaints were based.
“A judge cannot fairly be required to answer an unrefined collection of allegations without being informed of precise constitutional ground upon which the allegations are said to rest,” he said.
The court found that requiring the judges to respond before undertaking the preliminary screening rendered the process procedurally defective.
Justice Mugambi also noted that although the JSC said it had held a meeting to consider the complaints, no minutes, deliberations or resolutions were presented to the court.
“Nothing was exhibited before the court despite the enormity of the issue at hand, the removal of all seven judges of the Supreme Court,” he said.
The court nevertheless affirmed that the JSC retains the constitutional mandate to receive and consider complaints against judges under Article 168.
It also rejected the JSC’s argument that the judges’ petitions were premature, finding that the commission had already commenced processing the complaints and issued notices requiring responses.
“A concrete administrative process has been initiated and specific constitutional objections raised regarding how that process was undertaken. We accordingly find the petition is ripe for determination,” Justice Mugambi said.
The court further rejected the proposition that Article 168 places the JSC’s exercise of its mandate beyond judicial review.
Justice Mugambi said the High Court retains jurisdiction to determine whether the JSC, while exercising its mandate, has acted within the Constitution, the Judicial Service Act and applicable principles of fair administrative action.
