The Judicial Service Commission has been blocked from proceeding with complaints seeking the removal of seven Supreme Court judges after the High Court found serious gaps in the way the process was initiated.
A three-judge bench comprising Justices Charles Kariuki, Lawrence Mugambi and Bahati Mwamuye ruled that the JSC did not carry out the required initial assessment before issuing notices to the judges.
The court declared the commission's communications, notices and directions unconstitutional, legally ineffective, null and void.
It further prohibited the JSC, its agents and anyone acting on its behalf from taking any additional steps or commencing or continuing proceedings founded on the notices or complaints arising from the same facts.
The judges found that the JSC had failed to establish that the notices dated January 27, 2025, were issued after a lawfully convened meeting of the commission.
The court also found that the commission had not met the required preliminary threshold to protect the judges' right to fair administrative action under Article 47 of the Constitution.
Another concern raised by the court was the manner in which the complaints were handled. The bench said the JSC had proceeded against the seven judges collectively through an omnibus process, contrary to the Constitution and the law.
The commission was also faulted for failing to clearly state the grounds and particulars contemplated under Article 168(1)(a) to (e), which provides the constitutional grounds for removing a judge.
The High Court consequently issued an order of certiorari cancelling the January 27, 2025 notices and all related communications, decisions, actions and proceedings arising from three petitions filed before the JSC.
The court's order also prevents the commission from taking further action on the notices or complaints based on the same set of facts.
The case followed petitions filed to challenge the manner in which the JSC dealt with complaints seeking the removal of all seven Supreme Court judges.
One of the complaints was lodged by former Law Society of Kenya President Nelson Havi.
The judges had argued that the commission should first establish whether the complaints disclosed any of the constitutional grounds for removal before requiring them to answer the allegations.
They also disputed the JSC's position that a subcommittee had examined the complaints and issued recommendations that were adopted by the commission on January 24, 2025.
The judges said the commission had not provided minutes, deliberations or resolutions to support that position.
Justice Mugambi, who delivered the judgment on behalf of the three-member bench, said complaints against judges must be subjected to a proper initial screening before a removal process can begin.
The court said the preliminary assessment provides safeguards for judicial independence, public confidence in the judiciary and the right to fair administrative action.
The bench noted that the notices sent to the judges only informed them of the complaints and gave them 21 days to respond.
However, the notices did not provide sufficient details of the factual allegations or specify the constitutional grounds being relied upon in seeking their removal.
The court said a judge cannot fairly respond to a collection of unrefined allegations without being told the exact constitutional grounds on which those allegations are based.
The High Court nevertheless affirmed that the JSC has the constitutional authority under Article 168 to receive and consider complaints against judges.
It held, however, that the commission must exercise that authority in line with constitutional and legal safeguards.
The court also dismissed the argument that Article 168 places JSC actions beyond judicial review, holding that the High Court can examine whether the commission acted within the Constitution, the Judicial Service Act and the requirements of fair administrative action.