Complainant letters cannot be used to initiate judge's removal, court rules

Chief Justice Martha Koome. [File]

A letter addressed to the Chief Justice seeking administrative intervention cannot form the basis for removing a judge, the Employment and Labour Relations Court (ELRC) has ruled.

Delivering a unanimous judgment in a case filed by Environment and Land Court Judge Anthony Ombwayo, a three-judge ELRC bench comprising Justices Jemimah Keli, Onesmus Makau, and Dr. Jacob Gikeri ruled that a letter written to the Chief Justice cannot simply be forwarded to the Judicial Service Commission (JSC) and treated as a petition for removal.

The judges further held that demanding a judge to respond to complaints regarding their rulings or judgments effectively turns the JSC into an appellate body, violating judicial independence.

Consequently, the court declared that a letter written to the Chief Justice by M/S Keaton & Keaton Advocates on March 14, 2025, was not a valid removal petition and could not be acted upon by the Commission.

“The court holds that the letter dated 14th March 2025 by M/S Keaton & Keaton Advocates is not a valid Petition under Article 168. The respondent was not seized of jurisdiction to invite the petitioner to respond to a document which was not a petition under Article 168 of the Constitution. The court further holds that the Respondent violated the Petitioner's right to fair administrative action. The Respondents' actions violated the independence of the Judiciary. The court is satisfied that the petition has merit,” ruled the bench led by Justice Keli.

The ELRC panel also barred the JSC from recommending to the President the appointment of a tribunal to investigate Justice Ombwayo.

Justice Ombwayo sued his employer after the JSC converted the law firm's letter into a formal removal petition. He explained that the complaint arose from his refusal to recuse himself from a land dispute between Juma Okumu and businessman Joshua Kulei.

The judge recounted that he had initially directed the case to proceed via affidavit evidence. Okumu subsequently sought to vary those orders, requesting that parties give oral evidence in person and seeking to join the Ethics and Anti-Corruption Commission (EACC) as an interested party. Justice Ombwayo rejected the application and maintained his original directive.

Okumu then filed a notice of appeal seeking to stay the proceedings, which the judge dismissed. Unrelenting, Okumu filed another application demanding both a stay and the judge's recusal, which was also dismissed.

Just before the main suit was set for hearing, Okumu’s lawyers wrote to the Chief Justice requesting administrative intervention, including transferring the file to another judge.

On September 17, 2025, Justice Ombwayo received a letter from the JSC notifying him that Okumu’s lawyers had filed a removal petition against him and requiring his response, which he submitted.

In a subsequent letter dated January 14, 2026, the commission directed the judge to appear for a formal hearing. Justice Ombwayo noted that he was never supplied with witness statements, even as the lawyers wrote to the commission indicating Okumu wished to withdraw the complaint.

Justice Ombwayo argued that there were no constitutional grounds justifying his removal, as he was neither mentally nor physically incapacitated, bankrupt, incompetent, nor guilty of gross misconduct or breach of the judicial code of conduct.

In its defense, the JSC acknowledged that Okumu’s conflict-of-interest allegations had been submitted via letter. However, the commission stated that after reviewing the document on September 16, 2025, commissioners decided the judge ought to respond.

The JSC argued that the withdrawal of a complaint does not automatically terminate proceedings. It asserted that under Article 168(2) of the Constitution, the commission is empowered to initiate removal proceedings on its own motion, independent of a third-party petition.

The commission further contended that Justice Ombwayo had instituted court action prematurely before the internal administrative process concluded, insisting that its constitutional independence must be safeguarded and that the judge had failed to establish a case warranting judicial interference.