Deputy Chief Justice Mwilu blasted advocate Nelson Havi because he said the Chief Justice controls judges who might hear petitions about their removal from office. Through her lawyer, Julius Kemboi, Mwilu called these comments an attack on the judicial oath. She made it clear that the CJ doesn't control the judges she picks for a bench to handle court matters.
Mwilu responded to objections from Havi, who claims the High Court cannot hear petitions filed by Supreme Court judges fighting their removal. On Wednesday, he told Justice Bahati Mwamuye not to send these cases to the CJ for a bench. He insisted the cases don't raise big enough constitutional issues to justify this step.
I have warned about possible problems with referrals. "If you certify and refer the matters to the CJ, she might create a friendly bench, which shouldn't happen," Havi said. He added that the CJ might also refuse to act, leaving the petitions stuck and keeping temporary orders active forever.
Advocate Paul Nyamodi disagreed with Havi. He asked the court to refer the matters if it believed more than one judge should handle them. "We must avoid reading our constitution in ways that leave it unable to address new situations," Nyamodi argued. He stressed that the CJ and DCJ, even as parties in these cases, must be allowed to form a bench if needed.
Nyamodi emphasized that creating a bench isn't a judicial action. "If you decide you have the authority and find the request for a bench justified, you should have no problem giving directions, even though the CJ and DCJ are involved in this matter," he said. Justice Mwamuye currently oversees petitions from Mwilu and Justice Mohamed Ibrahim.
Both judges had secured orders blocking JSC proceedings regarding their removal. Later, Havi filed a challenge against the court's power to examine proceedings before the Judicial Service Commission regarding the removal of Supreme Court judges. Havi claims these judges must use their only option under Article 168(8) of the Constitution, which he says requires them to accept JSC authority first.
The judges have pushed back, arguing that the JSC isn't the High Court and lacks power to interpret the constitution. They maintain their right to seek protection through proper legal channels despite Havi's objections to their approach.
Mwilu responded to objections from Havi, who claims the High Court cannot hear petitions filed by Supreme Court judges fighting their removal. On Wednesday, he told Justice Bahati Mwamuye not to send these cases to the CJ for a bench. He insisted the cases don't raise big enough constitutional issues to justify this step.
I have warned about possible problems with referrals. "If you certify and refer the matters to the CJ, she might create a friendly bench, which shouldn't happen," Havi said. He added that the CJ might also refuse to act, leaving the petitions stuck and keeping temporary orders active forever.
Advocate Paul Nyamodi disagreed with Havi. He asked the court to refer the matters if it believed more than one judge should handle them. "We must avoid reading our constitution in ways that leave it unable to address new situations," Nyamodi argued. He stressed that the CJ and DCJ, even as parties in these cases, must be allowed to form a bench if needed.
Nyamodi emphasized that creating a bench isn't a judicial action. "If you decide you have the authority and find the request for a bench justified, you should have no problem giving directions, even though the CJ and DCJ are involved in this matter," he said. Justice Mwamuye currently oversees petitions from Mwilu and Justice Mohamed Ibrahim.
Both judges had secured orders blocking JSC proceedings regarding their removal. Later, Havi filed a challenge against the court's power to examine proceedings before the Judicial Service Commission regarding the removal of Supreme Court judges. Havi claims these judges must use their only option under Article 168(8) of the Constitution, which he says requires them to accept JSC authority first.
The judges have pushed back, arguing that the JSC isn't the High Court and lacks power to interpret the constitution. They maintain their right to seek protection through proper legal channels despite Havi's objections to their approach.
