REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E110 OF 2025
KENNEDY ECHESA LUBENGU............................................................PETITIONER
VERSUS
JUDICIAL SERVICE COMMISSION……………………………1ST RESPONDENT
ATTORNEY GENERAL………….……………………………….2ND RESPONDENT
AND
ALDRIN OJIAMBO T/A ACORN LAW
ADVOCATES LLP…………………………………………….INTERESTED PARTY
JUDGMENT
Introduction
1. This petition raises allegations touching on the conduct of a sitting Judge of the High Court being investigated by the judicial Service Commission. While the subject matter is unquestionably sensitive, this Court is constitutionally obligated to hear and determine all matters properly brought before it, regardless of the status of the parties involved.
2. We therefore approach the petition with the full measure of decisional independence expected of us under the Constitution of Kenya and shall evaluate the issues that the petition raises, strictly on the basis of the material placed before us, the law and the governing constitutional principles. As we do so, we are conscious of the fact that there exists no parallel constitutional forum vested with jurisdiction to hear and determine constitutional petitions of this nature outside the courts established under the Constitution. Accordingly, this Court cannot abdicate its duty. Moreover, the judicial office does not confer any immunity from scrutiny on the office holder, where the law requires an inquiry and this Court shall therefore, in undertaking its constitutional mandate, neither shield nor prejudice the Judge concerned, but shall remain guided solely by its oath and the essentials of justice for all the parties before the court.
3. The Petition essentially seeks the interpretation and enforcement by this Court, of the constitutional and statutory protection applied to the process of handling complaints and or petitions against Judges of superior courts before the Judicial Service Commission.
4. The Petition challenges the manner in which the Judicial Service Commission (JSC) is handling the petition filed against Lady justice Dorah Chepkwony, a sitting Judge of the High Court, following a petition filed by the Interested Party, an advocate of the High Court of Kenya, which petition called on the JSC to consider the Judge’s conduct of allegedly delaying to render a bail application ruling in a criminal trial and for losing the criminal court file.
5. The Petitioner, who is an Advocate of the High Court of Kenya maintains that the procedure adopted by the Judicial Service Commission in handling petitions against the Judge and judges generally, infringes on the learned Judge's right to fair administrative action and the right to a fair hearing as guaranteed by Articles 47 and 50(1) of the Constitution respectively. That the process violates the Judicial Service Act and that the procedure adopted by the Judicial Service Commission affects not only the right of the affected Judge but also has a negative impact on the independence of the judiciary and the dignity and security of all Judges of superior Courts in this country.
6. The Petitioner asserts that the steps taken by the Judicial Service Commission (JSC) in handling the complaint against the Judge, requiring her to appear for an oral hearing of the petition lodged against her by the advocate representing the accused person in the criminal case which the learned Judge was handling, for an alleged delayed ruling on an application for bail pending trial and loss of the criminal court file wherein the Interested Party’s client is the accused person, was undertaken in a manner inconsistent with Articles 47, 50, 160, and 172 of the Constitution.
7. The petitioner argues that since the JSC lacks any written rules or regulations that guide it in handling complaints against Judges, the JSC as an administrative body has not demonstrated that in handling the complaints against Judges, it adheres to constitutional principles of procedural fairness. He asserts that the Commission in attempting to hear a petition which has the potential for removal of the Judge, when there are no codified rules and regulations in place to direct how the Commission will handle any such complaints or petitions made against the Judge, infringes the constitutional guarantees of fair administrative action under Article 47 of the Constitution.
8. The petitioner further asserts that the JSC has failed to enact those regulations as required by Section 47 of the Judicial Service Act, besides violating the principles of a fair hearing, maintaining that this failure creates a situation where the Judge's security of tenure as guaranteed under the Constitution is compromised.
9. The petitioner also alleges that the Judicial Service Commission is attempting to review the merits of the decision of the learned Judge in the criminal case, thereby exercising jurisdiction that it is devoid of, thereby interfering with the decisional independence of the Judge, noting that the ruling allegedly delayed was already delivered.
10. The Petitioner further challenges the jurisdiction of the Judicial service Commission to entertain the petition against the Judge, in view of the fact that the allegedly delayed ruling was already delivered and that therefore the JSC proceedings are res judicata the ruling by the Judge.
11. The Judicial Service Commission, which is the primary Respondent, opposes the petition and contends that the petition is premature (not ripe), misconceived and an unwarranted interference with its constitutional mandate to consider complaints against Judges. It asserts that it acted within its powers under Articles 172(1)(c) and 168 of the Constitution and that the impugned proceedings represent routine preliminary steps that have been applied in previous and other pending petitions against Judges, in accordance with the rules of natural justice and fair administrative action, which steps, according to JSC, do not infringe upon judicial independence of Judges. According to the Commission, the petition amounts to an attempt to shield the Judge from lawful inquiry.
12. The Interested Party, being the complainant/Petitioner who initiated the petition before the JSC against the concerned Judge, is an advocate of the High Court of Kenya. He supports the 1st Respondent Commission’s position. Additionally, he challenges the locus standi of the Petitioner to institute these proceedings and urges this Court to refrain from intervening in an ongoing process constitutionally reserved for the JSC.
13. In summary, this judgment determines issues of jurisdiction, locus standi (standing), ripeness/exhaustion, the justiciability of the petition as well as the legitimacy and procedural correctness of the actions taken by the JSC and if there are any appropriate remedies available for the petitioner, given the circumstances.
The Petitioner’s Case
14. The Petition is dated 4th March 2025 and is brought pursuant to Articles 2,10, 22, 47, 50, 73, 159, 160, 165, 168, 171, 172 and 259 of the Constitution, the Judicial Service Act, The Fair Administrative Action Act and the Judicial Code of Conduct. It is supported by the affidavit of Kennedy Echesa Lubengu, the Petitioner, sworn on 4th March 2025. The Petitioner describes himself as an Advocate of the High Court of Kenya, an Academician, scholar and a public-spirited citizen of Kenya.
15. The 1st Respondent, the Judicial Service Commission (JSC) is a Constitutional Commission established under Article 171 of the Constitution and constituted as a body corporate with perpetual succession and a common seal under Article 253 of the Constitution.
16. The 2nd Respondent is the Attorney General of the Republic of Kenya and the principal legal adviser to the National Government and is established under Article 156 of the Constitution.
17. The Interested Party is an advocate of the High Court of Kenya and the Petitioner in the subject Judicial Service Commission Petition, filed against the Judge, being JSC Petition 29 of 2023: Acorn Law Advocates LLP vs. Hon. Lady Justice Dorah Chepkwony.
18. The Petition seeks the following reliefs:
a) A DECLARATION that the Constitutional jurisdiction of the 1st Respondent does not extend to merit review of any matter lawfully conducted, transacted or decided by a Judge or Judicial Officer in the course of the exercise of his or her judicial authority, functions and discretion.
b) A DECLARATION that matters lawfully conducted, transacted or decided by any Judicial Officer, within the judicial discretion and authority of the office holder, are protected by Article 160 of the Constitution from interference or influence by any party, save for lawful Appellate review where available as provided by law.
c) A DECLARATION that the 1st Respondent has no jurisdiction to admit, hear, consider or determine in any manner whatsoever matters that are the subject of ongoing judicial proceedings.
d) DECLARATION that until the 1st Respondent gazettes regulations defining the precise procedures for Petitions in accordance with Section 47 of the Judicial Service Act, it is a breach of the principles of natural justice and the rights of any judicial officer to a fair, transparent and impartial process as enshrined in Article 47 of the Constitution to purport to proceed with any JSC Petition.
e) An Order do issue prohibiting the 1st Respondent, its officers, servants or agents from considering, admitting to hearing or convening to hear any JSC Petitions until the Judicial Service Commission Gazettes regulations defining the precise procedures for Petitions in accordance with Section 47 of the Judicial Service Act.
12. The Petitioner’s case as pleaded is that the Petition filed with JSC by the interested party against the Lady Justice Dorah Chepkwony in relation to Milimani HCCR Case No. E097 of 2021 Republic versus Francis Kinyua Gitonga is res judicata, as the ruling which is the subject of the Petition before the 1st Respondent was already delivered and that the criminal matter is still pending hearing and determination before the High Court, Criminal Division.
13. The Petitioner states that the Interested Party only accuses the Hon. Judge on grounds of bias and seeks to have the Honourable Judge disciplined over the fact that there was delay in the delivery of the ruling; that there exist two rulings in the same matter which rulings were delivered by the Judge and another Judge of the High Court who is not party to the petition, and also on the merit of the ruling.
14. According to the Petitioner, the Interested Party is labouring under gross misapprehension that JSC sits in an appellate position; that it can conduct a merit review of a case that a judge has determined; and that it has jurisdiction to discipline a Judge on the premise that it or any party disagrees with the Ruling of a competent court.
15. The Petitioner contends that the Interested Party filed the complaint before the JSC purely in an attempt to use it as a tool of intimidation against the Judge in the hope of extracting favourable decisions from the High Court.
16. The Petitioner further asserts that since its establishment in 2011, the JSC has failed, neglected and/or declined to gazette the required regulations and rules of procedure contemplated under Section 47 of the Judicial Service Act to govern the conduct of disciplinary proceedings against Judges and that in the circumstances, it has been and continues to be impossible for Judges to understand the rules of engagement or procedure adopted by the JSC in handling complaints against Judges.
17. The Petitioner further avers that the 1st Respondent (JSC) has persisted in this vein despite the fact that there are Court Orders in place compelling the promulgation of the regulations. It is also his case that the procedure for fair hearing dictates and demands that any party accused before a Tribunal must face a defined process with clear cut rules of engagement. This, according to the Petitioner, will prevent proceedings from being conducted arbitrarily and would instead set the rules of engagement which both the complainant and the respondent can adhere to.
18. The petitioner further states that despite the Supreme Court delivering judgment on 17th February 2022, in Petition Number 34 of 2014; Gladys Boss Shollei v. Judicial Service Commission & Another and that at paragraph 79, directing the JSC to gazette the requisite regulations and rules of procedure for handling of complaints against Judges and judicial officers within 90 days from the date of the Judgement, to date, the JSC has no rules and regulations governing the handling of petitions or complaints against Judges, to the detriment of not only his client’s fundamental rights to fair process, but also the rights of all other Judges who may find themselves before the Commission.
19. The Petitioner asserts that this absence of regulations or codified procedures for handling of complaints against Judges renders proceedings before the JSC arbitrary and liable to subjectivity and lack of fair or transparent administrative action. The Petitioner reiterates that the JSC must therefore gazette the required regulations and rules of procedure as contemplated under Section 47 of the Judicial Service Act before it proceeds with the Petitions before it.
20. The Petitioner cites Article 22 of the Constitution which empowers every person to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated, or infringed or is threatened such as the Petitioner herein.
21. He further avers that the Constitutional requirements of fair administrative action under Article 47 and under statute demand that the JSC must be clothed with jurisdiction in the first instance, it’s actions must be lawful and within the constitutional principles of transparency, accountability and natural justice. This, according to the Petitioner is absent from the JSC’s conduct.
22. The Petitioner further states that the Petition filed before the Commission, particularly challenging the merit decisions of the High Court are thinly veiled attempts to challenge the exercise of judicial mandate and discretion by the Petitioner’s client and her fellow Judges in their capacities as Judges.
23. It is also the Petitioner’s contention that the actions of the JSC violate the principles of judicial independence as enshrined in Articles 159, 160, 171, and 172 of the Constitution.
24. The Petitioner states that the JSC as established under Article 171 is mandated to promote and safeguard judicial independence, while Article 172 delineates its functions, which do not include reviewing judicial decisions or exercising appellate jurisdiction.
25. According to the Petitioner, by purporting to scrutinize and review judicial determinations, the JSC is acting ultra vires, thereby contravening the Constitution and violating the doctrine of separation of powers under Articles 1 and 159.
26. It is the Petitioner’s further case that if the JSC is permitted to assume oversight over judicial decision-making, this will erode, the decisional independence of all Judges and Judicial Officers in Kenya.
27. Further, that the aforesaid oversight will render the exercise of judicial functions subject to review by litigants through the JSC and in so doing, will place the JSC in the position of being a threat to the very judicial independence and impartiality of the Courts that the 1st Respondent is constitutionally mandated to jealously protect under Article 172 and the Judicial Service Act.
28. Additionally, the Petitioner asserts that these actions contravene the established international standards on judicial independence, including the Bangalore Principles of Judicial Conduct, Article 10 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights, all of which emphasize the necessity of an impartial and independent judiciary free from external influence.
29. The Petitioner argues that the Interested Party’s Petition against the Judge concerns issues which are actively pending before the Courts, making it inconceivable that the JSC would entertain parallel proceedings that risk causing embarrassment to both itself and the Courts already seized of the matters.
30. The Petitioner further contends that the JSC’s assumption of jurisdiction over matters pending judicial determination amounts to a clear breach of his client’s constitutional rights, particularly the right to a fair hearing under Article 50 and the right to fair administrative action under Article 47.
31. The Petitioner maintains that by initiating proceedings on issues under judicial consideration, the JSC engages in an unlawful, unjust, and procedurally improper process lacking any legal basis, rendering the entire exercise unconstitutional, null and void.
32. Additionally, the Petitioner notes that Article 159(2)(b) obligates Courts to administer justice without delay and to prevent procedural abuse, yet the JSC’s intrusion into ongoing judicial matters disrupts the orderly delivery of justice and creates unnecessary encroachments and inconsistencies in legal determinations. Further, that Section 6 of the Civil Procedure Act expressly bars the trial or determination of matters already in issue in earlier proceedings before a competent Court.
33. The Petitioner further states that there is a real threat to the public confidence in the judicial process and the freedom from interference with the same, which will cause untold damage to the Judiciary. That the process, if allowed to infringe on matters where the JSC has no jurisdiction to initiate any inquiry, will only serve to intimidate Judges who are exercising their Judicial functions and this will cause a constitutional crisis given the fact that the JSC’s decisions are amendable to judicial review.
34. The Petitioner also states that the Petition before the JSC constitutes an unsubstantiated attack devoid of particulars on the Court and therefore in essence an attack on the whole judiciary. Additionally, that the JSC rules of process are non-existent. He also argues that it is evident that the JSC is proceeding in an abstract and amorphous manner in dealing with complaints lodged against judicial officers. This, according to the Petitioner, is in defiance of Court rulings and ought not to be allowed to persist as it ultimately results in a denial of fair proceedings before the JSC contrary to Articles 10 and 47 of the Constitution, which mandate transparency, accountability, fair administrative action and adherence to the rule of law.
35. The Petitioner reiterates that the lack of a structured and fair process also violates Sections 4 (1) and 4(3), of the Fair Administrative Action Act, 2015 which require that affected persons are given prior notice, reasons for decisions and an opportunity to be heard. He maintains that both he and his client are entitled to certainty and predictability in disciplinary processes, a right protected under Article 47(1) of the Constitution. He argues that the JSC’s arbitrary and unclear approach to disciplinary proceedings violates this guarantee and undermines the rule of law.
36. The Petitioner also highlights that his client, the Hon. Judge, imminently stands to suffer irreparable injury and infringement of her rights as the Constitution is very clear on the inevitable consequences of an adverse finding by the JSC.
37. He states that his client would be automatically suspended from office and a tribunal formed by the President to hear her case, and given the gravity of these consequences, her rights under Articles 27, 28, 47 and 50 of the Constitution guaranteeing equality before the law, dignity, fair administrative action and a fair hearing are at risk of violation.
38. Further, that this Court exercises its supervisory jurisdiction under Article 165(6) to review the conduct of the proceedings before the JSC and determine their legality and propriety ab initio, before the issue becomes moot and the Petitioner’s client suffers irreversible harm.
39. The Petitioner further asserts that all state organs are constitutionally obligated under Articles 10 and 259 to uphold national values and principles such as the rule of law, transparency, accountability, and fair administrative action standards. According to the Petitioner, the JSC has failed to meet these standards in its handling of the matter.
The 1st Respondent’s Response
40. In response the 1st Respondent, the Judicial Service Commission (JSC/ the Commission) filed a replying affidavit sworn on 26th March 2025 by Hon. Winfridah Mokaya, the Chief Registrar of the Judiciary and the Secretary to the Judicial Service Commission.
41. The 1st Respondent (JSC) states that it is established by Article 171 of the Constitution and its functions are set out under Article 172. That as set out in the Constitution, the core mandate of the Commission is to promote and facilitate the independence and accountability of the judiciary.
42. According to the 1st Respondent, Article 168 of the Constitution provides for removal of Judges of superior courts and provides under Article 168 (2) that the removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission.
43. It is stated that Article 168 (3) of the Constitution provides for the format of a petition for removal of a Judge and provides that a petition by a person to the Judicial Service Commission under Article 168 (2) shall be in writing, setting out the alleged facts constituting the grounds for the judge’s removal.
44. Further, that pursuant to its mandate under Article 168, the Commission on 2nd May 2023, received a petition dated 28th April 2023, from the firm of Acorn Law Advocates-LLP lodged against the Honorable Lady Justice Dorah Chepkwony, Judge of the High Court. That the petition had been lodged on behalf of the accused person in Nairobi High Court Criminal Case No. 097/2021, Republic versus Francis Kinyua Gitonga. The Petition is said to have been duly acknowledged and registered as JSC Petition No. 29/2023, Acorn Law Advocates-LLP-vs- Hon. Lady Justice Dorah Chepkwony.
45. In the Petition before the JSC, it is alleged that the Hon. Lady Justice Chepkwony had delayed in the delivery of a Ruling on an application for bail by the accused person, and that the alleged delay was for a period exceeding 1 year.
46. According to the JSC, the Petition was tabled before the Commission in its meeting of 15th January,2024 and upon that deliberation, it was resolved that the Honourable Judge be requested to respond to the Petition.
47. That through a letter dated 18th January,2024, the Honourable Judge was notified of the decision of the Commission and that she was requested to submit her response to the Petition within 21 days from the date of the letter, which 21 days lapsed on or about 9th February,2024.
48. That in a further letter dated 30th January,2024, the Petitioner was notified of the decision of the Commission of 15th January,2024 in which it was resolved that the Honourable Judge be requested to submit a response to the Petition.
49. It is the 1st Respondent’s contention that the Honourable Judge did not respond to the Petition within the 21 days as requested and a further request for a response to the Petition was made to her vide a letter dated 31st May 2024 and forwarded via email of 4th June 2024.
50. Again, it is contended that the Honourable Judge did not respond to the Petition as requested vide the letter of 31st May 2024 prompting the Commission to make a further request.
51. The 1st Respondent contends that the several letters and reminders for the Honourable Judge to submit her response to the Petition did not elicit any response, and that the matter was re-tabled before the Commission on 30th August 2024 and the Commission resolved that the Honourable Judge be given a further opportunity to respond to the petition. This is said to have been communicated through a letter dated 18th September 2024.
52. Again, it is contended that the Judge did not respond to the Petition as requested through the letter dated 18th September 2024 and the several other previous letters and that in its meeting of 26th November,2024 and upon consideration, it was resolved that the Petition be admitted for oral hearing and that both the Petitioner and the Honourable Judge be invited to appear before a Panel of the JSC, appointed to hear the petition. The decision was allegedly communicated to the Honourable Judge and the Petitioner vide a letter dated 9th December,2024, and that in the same letter, the Honourable Judge was implored to submit her response to the Petition.
53. According to the 1st Respondent, in the letters to the Honourable Judge and the Petitioner dated 9th December,2024, the Commission notified the parties of their right to legal representation, the right to cross-examine witnesses during the hearing, the right to file any documents, to call witnesses and to file witness statements in support of their respective cases.
54. The 1st Respondent states that through letters dated 20th January,2025, the Honourable Judge and the Petitioner were both notified that the Petition had been scheduled for oral hearing before the Commission Panel on 5th February,2025 and that they were both required to appear on the scheduled date to prosecute their respective cases.
55. The Commission avers that on 24th January 2025, the Honourable Judge appointed the firm of Wamalwa & Echesa Company Advocates to represent her in the Petition, and that in an email communication dated 4th February 2025, the Advocate on record for the Honourable Judge wrote to the JSC requesting for an adjournment of the matter on the scheduled date of 5th February 2025.
56. The 1st Respondent’s avers that as at the time of filing this response to this petition, the Honourable Judge was yet to file a response to the Petition before the JSC and that when the JSC petition came up for hearing on 5th February 2025 as earlier scheduled and communicated, the Honourable Judge through counsel on record sought an adjournment on the ground that she was still putting together a defence to the Petition and thus needed more time. The Commission is said to have considered the application for adjournment and noted that the Petition was filed on 3rd May 2023 and that the Honourable Judge had been served with seven (7) letters requesting her to respond and further that at the pre-hearing conference held on 24th January,2025, the Honourable Judge was granted seven (7) more days to file a response but had not.
57. The Commission is said to have been concerned that the Honourable Judge ought to have given instructions to counsel on time. That, nonetheless, the Commission in the spirit of fairness and impartiality, allowed the prayer and granted the adjournment. The Honourable Judge it is stated, was therefore granted seven (7) more days to file and serve her response to the Petition and the oral hearing was adjourned to 5th March,2025.
58. The 1st Respondent states that on 12th February 2025, the Honourable Judge filed her response to the Petition generally denying the allegations in the Petition stating that the delay in delivery of the ruling in question was in her opinion not inordinate.
59. According to the 1st Respondent, the Hon Judge did not at any point raise any preliminary issues regarding the jurisdiction of the Commission to entertain the Petition and that neither did she infer to the Petition as raising issues that touched on the merit or otherwise of her ruling in the criminal case nor alleged lack of rules of procedure to govern the processing of petitions before the Commission.
60. The 1st Respondent asserts that what can be discerned from the Petition initiated against the Judge by the interested party herein are allegations of delay in the delivery of a Ruling for a period over (1) one year and the retention of a Court file beyond the allowed timeframe and that therefore, this Honourable Court ought to audit the process as enumerated in the preceding paragraphs with a view of ascertaining the JSC’s compliance with the rules of natural justice and principles of fair administrative action.
61. On the petitioner’s allegation that the Petition by the Interested party before the Commission touches on the merits of the Honourable Judge’s judicial decision and that therefore this would curtail decisional independence or judicial discretion, the 1st Respondent contends that the Honourable Judge in her response did not raise these issues before the Commission either in the preliminary or in her response dated 12th February,2025. Further, that had the said issues been raised, the proper forum for ventilating such issues is at the Commission and not before this Court or any other forum.
62. The 1st Respondent avers that even if the Petition before the Commission had raised issues touching on the merit or otherwise of her the Judge’s decision, the Commission is the only body mandated under the Constitution to consider such issues.
63. On the contention by the Petitioner that the Commission has failed to enact rules of procedure to govern the processing of Petitions against Judges as required of it under Section 47 of the Judicial Service Act and as directed by the Supreme Court in Gladys Boss Shollei vs. JSC (supra) case, the 1st Respondent states that this argument is based on a misapplication of the law as Section 47 of the Judicial Service Act provides for regulations and states that the Commission may make regulations for the better carrying out of the purposes of this Act which may include preliminary procedures for making any recommendat
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IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E110 OF 2025
KENNEDY ECHESA LUBENGU............................................................PETITIONER
VERSUS
JUDICIAL SERVICE COMMISSION……………………………1ST RESPONDENT
ATTORNEY GENERAL………….……………………………….2ND RESPONDENT
AND
ALDRIN OJIAMBO T/A ACORN LAW
ADVOCATES LLP…………………………………………….INTERESTED PARTY
JUDGMENT
Introduction
1. This petition raises allegations touching on the conduct of a sitting Judge of the High Court being investigated by the judicial Service Commission. While the subject matter is unquestionably sensitive, this Court is constitutionally obligated to hear and determine all matters properly brought before it, regardless of the status of the parties involved.
2. We therefore approach the petition with the full measure of decisional independence expected of us under the Constitution of Kenya and shall evaluate the issues that the petition raises, strictly on the basis of the material placed before us, the law and the governing constitutional principles. As we do so, we are conscious of the fact that there exists no parallel constitutional forum vested with jurisdiction to hear and determine constitutional petitions of this nature outside the courts established under the Constitution. Accordingly, this Court cannot abdicate its duty. Moreover, the judicial office does not confer any immunity from scrutiny on the office holder, where the law requires an inquiry and this Court shall therefore, in undertaking its constitutional mandate, neither shield nor prejudice the Judge concerned, but shall remain guided solely by its oath and the essentials of justice for all the parties before the court.
3. The Petition essentially seeks the interpretation and enforcement by this Court, of the constitutional and statutory protection applied to the process of handling complaints and or petitions against Judges of superior courts before the Judicial Service Commission.
4. The Petition challenges the manner in which the Judicial Service Commission (JSC) is handling the petition filed against Lady justice Dorah Chepkwony, a sitting Judge of the High Court, following a petition filed by the Interested Party, an advocate of the High Court of Kenya, which petition called on the JSC to consider the Judge’s conduct of allegedly delaying to render a bail application ruling in a criminal trial and for losing the criminal court file.
5. The Petitioner, who is an Advocate of the High Court of Kenya maintains that the procedure adopted by the Judicial Service Commission in handling petitions against the Judge and judges generally, infringes on the learned Judge's right to fair administrative action and the right to a fair hearing as guaranteed by Articles 47 and 50(1) of the Constitution respectively. That the process violates the Judicial Service Act and that the procedure adopted by the Judicial Service Commission affects not only the right of the affected Judge but also has a negative impact on the independence of the judiciary and the dignity and security of all Judges of superior Courts in this country.
6. The Petitioner asserts that the steps taken by the Judicial Service Commission (JSC) in handling the complaint against the Judge, requiring her to appear for an oral hearing of the petition lodged against her by the advocate representing the accused person in the criminal case which the learned Judge was handling, for an alleged delayed ruling on an application for bail pending trial and loss of the criminal court file wherein the Interested Party’s client is the accused person, was undertaken in a manner inconsistent with Articles 47, 50, 160, and 172 of the Constitution.
7. The petitioner argues that since the JSC lacks any written rules or regulations that guide it in handling complaints against Judges, the JSC as an administrative body has not demonstrated that in handling the complaints against Judges, it adheres to constitutional principles of procedural fairness. He asserts that the Commission in attempting to hear a petition which has the potential for removal of the Judge, when there are no codified rules and regulations in place to direct how the Commission will handle any such complaints or petitions made against the Judge, infringes the constitutional guarantees of fair administrative action under Article 47 of the Constitution.
8. The petitioner further asserts that the JSC has failed to enact those regulations as required by Section 47 of the Judicial Service Act, besides violating the principles of a fair hearing, maintaining that this failure creates a situation where the Judge's security of tenure as guaranteed under the Constitution is compromised.
9. The petitioner also alleges that the Judicial Service Commission is attempting to review the merits of the decision of the learned Judge in the criminal case, thereby exercising jurisdiction that it is devoid of, thereby interfering with the decisional independence of the Judge, noting that the ruling allegedly delayed was already delivered.
10. The Petitioner further challenges the jurisdiction of the Judicial service Commission to entertain the petition against the Judge, in view of the fact that the allegedly delayed ruling was already delivered and that therefore the JSC proceedings are res judicata the ruling by the Judge.
11. The Judicial Service Commission, which is the primary Respondent, opposes the petition and contends that the petition is premature (not ripe), misconceived and an unwarranted interference with its constitutional mandate to consider complaints against Judges. It asserts that it acted within its powers under Articles 172(1)(c) and 168 of the Constitution and that the impugned proceedings represent routine preliminary steps that have been applied in previous and other pending petitions against Judges, in accordance with the rules of natural justice and fair administrative action, which steps, according to JSC, do not infringe upon judicial independence of Judges. According to the Commission, the petition amounts to an attempt to shield the Judge from lawful inquiry.
12. The Interested Party, being the complainant/Petitioner who initiated the petition before the JSC against the concerned Judge, is an advocate of the High Court of Kenya. He supports the 1st Respondent Commission’s position. Additionally, he challenges the locus standi of the Petitioner to institute these proceedings and urges this Court to refrain from intervening in an ongoing process constitutionally reserved for the JSC.
13. In summary, this judgment determines issues of jurisdiction, locus standi (standing), ripeness/exhaustion, the justiciability of the petition as well as the legitimacy and procedural correctness of the actions taken by the JSC and if there are any appropriate remedies available for the petitioner, given the circumstances.
The Petitioner’s Case
14. The Petition is dated 4th March 2025 and is brought pursuant to Articles 2,10, 22, 47, 50, 73, 159, 160, 165, 168, 171, 172 and 259 of the Constitution, the Judicial Service Act, The Fair Administrative Action Act and the Judicial Code of Conduct. It is supported by the affidavit of Kennedy Echesa Lubengu, the Petitioner, sworn on 4th March 2025. The Petitioner describes himself as an Advocate of the High Court of Kenya, an Academician, scholar and a public-spirited citizen of Kenya.
15. The 1st Respondent, the Judicial Service Commission (JSC) is a Constitutional Commission established under Article 171 of the Constitution and constituted as a body corporate with perpetual succession and a common seal under Article 253 of the Constitution.
16. The 2nd Respondent is the Attorney General of the Republic of Kenya and the principal legal adviser to the National Government and is established under Article 156 of the Constitution.
17. The Interested Party is an advocate of the High Court of Kenya and the Petitioner in the subject Judicial Service Commission Petition, filed against the Judge, being JSC Petition 29 of 2023: Acorn Law Advocates LLP vs. Hon. Lady Justice Dorah Chepkwony.
18. The Petition seeks the following reliefs:
a) A DECLARATION that the Constitutional jurisdiction of the 1st Respondent does not extend to merit review of any matter lawfully conducted, transacted or decided by a Judge or Judicial Officer in the course of the exercise of his or her judicial authority, functions and discretion.
b) A DECLARATION that matters lawfully conducted, transacted or decided by any Judicial Officer, within the judicial discretion and authority of the office holder, are protected by Article 160 of the Constitution from interference or influence by any party, save for lawful Appellate review where available as provided by law.
c) A DECLARATION that the 1st Respondent has no jurisdiction to admit, hear, consider or determine in any manner whatsoever matters that are the subject of ongoing judicial proceedings.
d) DECLARATION that until the 1st Respondent gazettes regulations defining the precise procedures for Petitions in accordance with Section 47 of the Judicial Service Act, it is a breach of the principles of natural justice and the rights of any judicial officer to a fair, transparent and impartial process as enshrined in Article 47 of the Constitution to purport to proceed with any JSC Petition.
e) An Order do issue prohibiting the 1st Respondent, its officers, servants or agents from considering, admitting to hearing or convening to hear any JSC Petitions until the Judicial Service Commission Gazettes regulations defining the precise procedures for Petitions in accordance with Section 47 of the Judicial Service Act.
12. The Petitioner’s case as pleaded is that the Petition filed with JSC by the interested party against the Lady Justice Dorah Chepkwony in relation to Milimani HCCR Case No. E097 of 2021 Republic versus Francis Kinyua Gitonga is res judicata, as the ruling which is the subject of the Petition before the 1st Respondent was already delivered and that the criminal matter is still pending hearing and determination before the High Court, Criminal Division.
13. The Petitioner states that the Interested Party only accuses the Hon. Judge on grounds of bias and seeks to have the Honourable Judge disciplined over the fact that there was delay in the delivery of the ruling; that there exist two rulings in the same matter which rulings were delivered by the Judge and another Judge of the High Court who is not party to the petition, and also on the merit of the ruling.
14. According to the Petitioner, the Interested Party is labouring under gross misapprehension that JSC sits in an appellate position; that it can conduct a merit review of a case that a judge has determined; and that it has jurisdiction to discipline a Judge on the premise that it or any party disagrees with the Ruling of a competent court.
15. The Petitioner contends that the Interested Party filed the complaint before the JSC purely in an attempt to use it as a tool of intimidation against the Judge in the hope of extracting favourable decisions from the High Court.
16. The Petitioner further asserts that since its establishment in 2011, the JSC has failed, neglected and/or declined to gazette the required regulations and rules of procedure contemplated under Section 47 of the Judicial Service Act to govern the conduct of disciplinary proceedings against Judges and that in the circumstances, it has been and continues to be impossible for Judges to understand the rules of engagement or procedure adopted by the JSC in handling complaints against Judges.
17. The Petitioner further avers that the 1st Respondent (JSC) has persisted in this vein despite the fact that there are Court Orders in place compelling the promulgation of the regulations. It is also his case that the procedure for fair hearing dictates and demands that any party accused before a Tribunal must face a defined process with clear cut rules of engagement. This, according to the Petitioner, will prevent proceedings from being conducted arbitrarily and would instead set the rules of engagement which both the complainant and the respondent can adhere to.
18. The petitioner further states that despite the Supreme Court delivering judgment on 17th February 2022, in Petition Number 34 of 2014; Gladys Boss Shollei v. Judicial Service Commission & Another and that at paragraph 79, directing the JSC to gazette the requisite regulations and rules of procedure for handling of complaints against Judges and judicial officers within 90 days from the date of the Judgement, to date, the JSC has no rules and regulations governing the handling of petitions or complaints against Judges, to the detriment of not only his client’s fundamental rights to fair process, but also the rights of all other Judges who may find themselves before the Commission.
19. The Petitioner asserts that this absence of regulations or codified procedures for handling of complaints against Judges renders proceedings before the JSC arbitrary and liable to subjectivity and lack of fair or transparent administrative action. The Petitioner reiterates that the JSC must therefore gazette the required regulations and rules of procedure as contemplated under Section 47 of the Judicial Service Act before it proceeds with the Petitions before it.
20. The Petitioner cites Article 22 of the Constitution which empowers every person to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated, or infringed or is threatened such as the Petitioner herein.
21. He further avers that the Constitutional requirements of fair administrative action under Article 47 and under statute demand that the JSC must be clothed with jurisdiction in the first instance, it’s actions must be lawful and within the constitutional principles of transparency, accountability and natural justice. This, according to the Petitioner is absent from the JSC’s conduct.
22. The Petitioner further states that the Petition filed before the Commission, particularly challenging the merit decisions of the High Court are thinly veiled attempts to challenge the exercise of judicial mandate and discretion by the Petitioner’s client and her fellow Judges in their capacities as Judges.
23. It is also the Petitioner’s contention that the actions of the JSC violate the principles of judicial independence as enshrined in Articles 159, 160, 171, and 172 of the Constitution.
24. The Petitioner states that the JSC as established under Article 171 is mandated to promote and safeguard judicial independence, while Article 172 delineates its functions, which do not include reviewing judicial decisions or exercising appellate jurisdiction.
25. According to the Petitioner, by purporting to scrutinize and review judicial determinations, the JSC is acting ultra vires, thereby contravening the Constitution and violating the doctrine of separation of powers under Articles 1 and 159.
26. It is the Petitioner’s further case that if the JSC is permitted to assume oversight over judicial decision-making, this will erode, the decisional independence of all Judges and Judicial Officers in Kenya.
27. Further, that the aforesaid oversight will render the exercise of judicial functions subject to review by litigants through the JSC and in so doing, will place the JSC in the position of being a threat to the very judicial independence and impartiality of the Courts that the 1st Respondent is constitutionally mandated to jealously protect under Article 172 and the Judicial Service Act.
28. Additionally, the Petitioner asserts that these actions contravene the established international standards on judicial independence, including the Bangalore Principles of Judicial Conduct, Article 10 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights, all of which emphasize the necessity of an impartial and independent judiciary free from external influence.
29. The Petitioner argues that the Interested Party’s Petition against the Judge concerns issues which are actively pending before the Courts, making it inconceivable that the JSC would entertain parallel proceedings that risk causing embarrassment to both itself and the Courts already seized of the matters.
30. The Petitioner further contends that the JSC’s assumption of jurisdiction over matters pending judicial determination amounts to a clear breach of his client’s constitutional rights, particularly the right to a fair hearing under Article 50 and the right to fair administrative action under Article 47.
31. The Petitioner maintains that by initiating proceedings on issues under judicial consideration, the JSC engages in an unlawful, unjust, and procedurally improper process lacking any legal basis, rendering the entire exercise unconstitutional, null and void.
32. Additionally, the Petitioner notes that Article 159(2)(b) obligates Courts to administer justice without delay and to prevent procedural abuse, yet the JSC’s intrusion into ongoing judicial matters disrupts the orderly delivery of justice and creates unnecessary encroachments and inconsistencies in legal determinations. Further, that Section 6 of the Civil Procedure Act expressly bars the trial or determination of matters already in issue in earlier proceedings before a competent Court.
33. The Petitioner further states that there is a real threat to the public confidence in the judicial process and the freedom from interference with the same, which will cause untold damage to the Judiciary. That the process, if allowed to infringe on matters where the JSC has no jurisdiction to initiate any inquiry, will only serve to intimidate Judges who are exercising their Judicial functions and this will cause a constitutional crisis given the fact that the JSC’s decisions are amendable to judicial review.
34. The Petitioner also states that the Petition before the JSC constitutes an unsubstantiated attack devoid of particulars on the Court and therefore in essence an attack on the whole judiciary. Additionally, that the JSC rules of process are non-existent. He also argues that it is evident that the JSC is proceeding in an abstract and amorphous manner in dealing with complaints lodged against judicial officers. This, according to the Petitioner, is in defiance of Court rulings and ought not to be allowed to persist as it ultimately results in a denial of fair proceedings before the JSC contrary to Articles 10 and 47 of the Constitution, which mandate transparency, accountability, fair administrative action and adherence to the rule of law.
35. The Petitioner reiterates that the lack of a structured and fair process also violates Sections 4 (1) and 4(3), of the Fair Administrative Action Act, 2015 which require that affected persons are given prior notice, reasons for decisions and an opportunity to be heard. He maintains that both he and his client are entitled to certainty and predictability in disciplinary processes, a right protected under Article 47(1) of the Constitution. He argues that the JSC’s arbitrary and unclear approach to disciplinary proceedings violates this guarantee and undermines the rule of law.
36. The Petitioner also highlights that his client, the Hon. Judge, imminently stands to suffer irreparable injury and infringement of her rights as the Constitution is very clear on the inevitable consequences of an adverse finding by the JSC.
37. He states that his client would be automatically suspended from office and a tribunal formed by the President to hear her case, and given the gravity of these consequences, her rights under Articles 27, 28, 47 and 50 of the Constitution guaranteeing equality before the law, dignity, fair administrative action and a fair hearing are at risk of violation.
38. Further, that this Court exercises its supervisory jurisdiction under Article 165(6) to review the conduct of the proceedings before the JSC and determine their legality and propriety ab initio, before the issue becomes moot and the Petitioner’s client suffers irreversible harm.
39. The Petitioner further asserts that all state organs are constitutionally obligated under Articles 10 and 259 to uphold national values and principles such as the rule of law, transparency, accountability, and fair administrative action standards. According to the Petitioner, the JSC has failed to meet these standards in its handling of the matter.
The 1st Respondent’s Response
40. In response the 1st Respondent, the Judicial Service Commission (JSC/ the Commission) filed a replying affidavit sworn on 26th March 2025 by Hon. Winfridah Mokaya, the Chief Registrar of the Judiciary and the Secretary to the Judicial Service Commission.
41. The 1st Respondent (JSC) states that it is established by Article 171 of the Constitution and its functions are set out under Article 172. That as set out in the Constitution, the core mandate of the Commission is to promote and facilitate the independence and accountability of the judiciary.
42. According to the 1st Respondent, Article 168 of the Constitution provides for removal of Judges of superior courts and provides under Article 168 (2) that the removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission.
43. It is stated that Article 168 (3) of the Constitution provides for the format of a petition for removal of a Judge and provides that a petition by a person to the Judicial Service Commission under Article 168 (2) shall be in writing, setting out the alleged facts constituting the grounds for the judge’s removal.
44. Further, that pursuant to its mandate under Article 168, the Commission on 2nd May 2023, received a petition dated 28th April 2023, from the firm of Acorn Law Advocates-LLP lodged against the Honorable Lady Justice Dorah Chepkwony, Judge of the High Court. That the petition had been lodged on behalf of the accused person in Nairobi High Court Criminal Case No. 097/2021, Republic versus Francis Kinyua Gitonga. The Petition is said to have been duly acknowledged and registered as JSC Petition No. 29/2023, Acorn Law Advocates-LLP-vs- Hon. Lady Justice Dorah Chepkwony.
45. In the Petition before the JSC, it is alleged that the Hon. Lady Justice Chepkwony had delayed in the delivery of a Ruling on an application for bail by the accused person, and that the alleged delay was for a period exceeding 1 year.
46. According to the JSC, the Petition was tabled before the Commission in its meeting of 15th January,2024 and upon that deliberation, it was resolved that the Honourable Judge be requested to respond to the Petition.
47. That through a letter dated 18th January,2024, the Honourable Judge was notified of the decision of the Commission and that she was requested to submit her response to the Petition within 21 days from the date of the letter, which 21 days lapsed on or about 9th February,2024.
48. That in a further letter dated 30th January,2024, the Petitioner was notified of the decision of the Commission of 15th January,2024 in which it was resolved that the Honourable Judge be requested to submit a response to the Petition.
49. It is the 1st Respondent’s contention that the Honourable Judge did not respond to the Petition within the 21 days as requested and a further request for a response to the Petition was made to her vide a letter dated 31st May 2024 and forwarded via email of 4th June 2024.
50. Again, it is contended that the Honourable Judge did not respond to the Petition as requested vide the letter of 31st May 2024 prompting the Commission to make a further request.
51. The 1st Respondent contends that the several letters and reminders for the Honourable Judge to submit her response to the Petition did not elicit any response, and that the matter was re-tabled before the Commission on 30th August 2024 and the Commission resolved that the Honourable Judge be given a further opportunity to respond to the petition. This is said to have been communicated through a letter dated 18th September 2024.
52. Again, it is contended that the Judge did not respond to the Petition as requested through the letter dated 18th September 2024 and the several other previous letters and that in its meeting of 26th November,2024 and upon consideration, it was resolved that the Petition be admitted for oral hearing and that both the Petitioner and the Honourable Judge be invited to appear before a Panel of the JSC, appointed to hear the petition. The decision was allegedly communicated to the Honourable Judge and the Petitioner vide a letter dated 9th December,2024, and that in the same letter, the Honourable Judge was implored to submit her response to the Petition.
53. According to the 1st Respondent, in the letters to the Honourable Judge and the Petitioner dated 9th December,2024, the Commission notified the parties of their right to legal representation, the right to cross-examine witnesses during the hearing, the right to file any documents, to call witnesses and to file witness statements in support of their respective cases.
54. The 1st Respondent states that through letters dated 20th January,2025, the Honourable Judge and the Petitioner were both notified that the Petition had been scheduled for oral hearing before the Commission Panel on 5th February,2025 and that they were both required to appear on the scheduled date to prosecute their respective cases.
55. The Commission avers that on 24th January 2025, the Honourable Judge appointed the firm of Wamalwa & Echesa Company Advocates to represent her in the Petition, and that in an email communication dated 4th February 2025, the Advocate on record for the Honourable Judge wrote to the JSC requesting for an adjournment of the matter on the scheduled date of 5th February 2025.
56. The 1st Respondent’s avers that as at the time of filing this response to this petition, the Honourable Judge was yet to file a response to the Petition before the JSC and that when the JSC petition came up for hearing on 5th February 2025 as earlier scheduled and communicated, the Honourable Judge through counsel on record sought an adjournment on the ground that she was still putting together a defence to the Petition and thus needed more time. The Commission is said to have considered the application for adjournment and noted that the Petition was filed on 3rd May 2023 and that the Honourable Judge had been served with seven (7) letters requesting her to respond and further that at the pre-hearing conference held on 24th January,2025, the Honourable Judge was granted seven (7) more days to file a response but had not.
57. The Commission is said to have been concerned that the Honourable Judge ought to have given instructions to counsel on time. That, nonetheless, the Commission in the spirit of fairness and impartiality, allowed the prayer and granted the adjournment. The Honourable Judge it is stated, was therefore granted seven (7) more days to file and serve her response to the Petition and the oral hearing was adjourned to 5th March,2025.
58. The 1st Respondent states that on 12th February 2025, the Honourable Judge filed her response to the Petition generally denying the allegations in the Petition stating that the delay in delivery of the ruling in question was in her opinion not inordinate.
59. According to the 1st Respondent, the Hon Judge did not at any point raise any preliminary issues regarding the jurisdiction of the Commission to entertain the Petition and that neither did she infer to the Petition as raising issues that touched on the merit or otherwise of her ruling in the criminal case nor alleged lack of rules of procedure to govern the processing of petitions before the Commission.
60. The 1st Respondent asserts that what can be discerned from the Petition initiated against the Judge by the interested party herein are allegations of delay in the delivery of a Ruling for a period over (1) one year and the retention of a Court file beyond the allowed timeframe and that therefore, this Honourable Court ought to audit the process as enumerated in the preceding paragraphs with a view of ascertaining the JSC’s compliance with the rules of natural justice and principles of fair administrative action.
61. On the petitioner’s allegation that the Petition by the Interested party before the Commission touches on the merits of the Honourable Judge’s judicial decision and that therefore this would curtail decisional independence or judicial discretion, the 1st Respondent contends that the Honourable Judge in her response did not raise these issues before the Commission either in the preliminary or in her response dated 12th February,2025. Further, that had the said issues been raised, the proper forum for ventilating such issues is at the Commission and not before this Court or any other forum.
62. The 1st Respondent avers that even if the Petition before the Commission had raised issues touching on the merit or otherwise of her the Judge’s decision, the Commission is the only body mandated under the Constitution to consider such issues.
63. On the contention by the Petitioner that the Commission has failed to enact rules of procedure to govern the processing of Petitions against Judges as required of it under Section 47 of the Judicial Service Act and as directed by the Supreme Court in Gladys Boss Shollei vs. JSC (supra) case, the 1st Respondent states that this argument is based on a misapplication of the law as Section 47 of the Judicial Service Act provides for regulations and states that the Commission may make regulations for the better carrying out of the purposes of this Act which may include preliminary procedures for making any recommendat
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