Fresh petition seeks CJ Koome's removal over judge selection in own case

A new petition filed at the Judicial Service Commission is seeking the removal of Chief Justice Martha Koome from office for alleged misconduct in a case involving the Supreme Court and the commission itself.

The petition has been filed by former Law Society of Kenya president Nelson Havi, who accuses the Chief Justice of compromising judicial independence by assigning judges he describes as junior and inexperienced to hear a petition she filed alongside other Supreme Court judges.

At the centre of the complaint is Koome’s decision to assign Justices Lawrence Mugambi and Bahati Mwamuye to the three-judge bench hearing the petition.

Havi says both judges were appointed recently, Mugambi in 2022 and Mwamuye in 2024, and that she was involved in their recruitment while serving as chairperson of the JSC.

"The gravity and weight of the claim in the petitions by judges of the Supreme Court required an expanded bench of experienced five or seven judges of diverse philosophies and manifesting the face of Kenya, not to forget gender balance," Havi says in his 17-page affidavit.

He argues that the nature of the petition required judges with more than five years of service on the bench or those who joined the bar in the 1980s.

He adds that Koome, who joined the bar in 1987, had the option of selecting more experienced judges, including her own peers, and that the Presiding Judge of the Constitutional and Human Rights Division would have been a suitable choice.

"In any event, there are many more senior judges of the High Court, including the Presiding Judge of the Constitutional Division, who are peers of Justice Koome and who would have been suitable for assignment," reads the petition.

The third judge on the bench is Justice Charles Kariuki, who is based in Narok.

He was admitted to the bar in 1989 and has over 20 years of experience in the Judiciary.

The case in question involves all seven judges of the Supreme Court, led by Koome, who moved to the High Court in February after the JSC signalled plans to begin disciplinary proceedings.

The commission had issued notices to the judges, including one based on a complaint from Havi, following their decision to bar lawyer Ahmednasir Abdullahi and his firm from appearing before the Supreme Court.

Havi says the Chief Justice acted unethically by filing a petition in the High Court, which is below her in the judicial hierarchy, especially since the matter could later land before the Supreme Court, where she presides.

"The institution by CJ Koome of the petition against JSC before the High Court, which is subordinate to her, whose decision may end up before the Supreme Court, of which she is the president, is gross misconduct and misbehaviour," Havi argues.

"I verily believe that the assignment of the petitions in which she is the petitioner to Kariuki, Mugambi and Mwamuye to hear is gross misconduct and misbehaviour warranting her removal from office."

He insists that as a party in the case, Koome had no business selecting the bench and should have handed over that role to another judicial officer.

To support his point, Havi refers to the case of retired Chief Justice David Maraga, who in 2021 delegated the task of assigning judges to Deputy Chief Justice Philomena Mwilu when facing legal action over his advisory to dissolve Parliament.

He also raises concerns about Koome assigning Justice Mugambi, who shares her ethnic background and comes from the same county, saying this creates a perception of bias.

Havi draws a comparison to former Gibraltar Chief Justice Derek Schofield, who was removed from office after initiating judicial review proceedings in a court where he later presided over the same matter.

"The conduct of Koome is similar in all aspects to that of Justice Schofield before her," he says.

He also argues that the High Court lacks the authority to hear a case about the removal of a Chief Justice or Deputy Chief Justice, saying this is a matter reserved for a special tribunal.

"Under Article 168 of the Constitution of Kenya, a tribunal to consider the removal of the Chief Justice of the Republic of Kenya comprises three superior court judges from common-law jurisdictions," Havi states.

The petition is now before the Judicial Service Commission for consideration.