In a ruling delivered on Friday, the court found that the JSC has failed, for more than a decade, to operationalise regulations required under Section 47 of the Judicial Service Act.

As a result, the court held that the commission’s current handling of complaints against judges lacks transparency and falls short of constitutional standards.You May Like

The case was filed by an advocate acting for a judge who is currently facing a complaint before the JSC. The complaint stems from allegations of delayed delivery of a ruling on a bail application and the alleged disappearance of a criminal case file. 

The petitioner argued that the JSC relies on informal, undocumented procedures that have never been enacted or gazetted, making the disciplinary process unpredictable and unlawful.

According to the petition, this approach violates both the Constitution and the Judicial Service Act.

In agreeing with the petitioner, the court ruled that the absence of formal regulations breaches the right to fair administrative action under Article 47 of the Constitution, as well as the right to a fair hearing guaranteed under Article 50(1).

The court also dismissed the JSC’s argument that the case had been brought prematurely. It held that parties are not obliged to endure an unconstitutional process before seeking redress from the courts.

The judge further noted that once a complaint against a judge reaches the hearing stage, there are no internal mechanisms within the JSC that can adequately address constitutional concerns.

A key issue highlighted in the judgment was that, without clear rules, judges subjected to complaints cannot determine whether they are facing a preliminary administrative review or a process that could ultimately lead to removal from office under Article 168 of the Constitution.

The court relied on the Supreme Court’s decision in David Gitonga Karani v Judicial Service Commission (2021), which underscored the need for judges to be clearly informed of the nature, scope, and potential consequences of disciplinary proceedings brought against them.

Describing the prolonged failure to develop and gazette regulations as unjustifiable, the court stated that allowing the JSC to continue operating without a legal framework would amount to endorsing an illegality.

However, the court declined to interrogate the substance of the complaint facing the judge, noting that such matters properly fall within the JSC’s constitutional mandate once the required regulations are lawfully in place.