Ahmednasir gets boost in Supreme court ban case

Lawyer Ahmednasir Abdullahi. [File, Standard]

Supreme Court Judges have suffered a setback after the High Court declined to dismiss a petition filed by the Law Society of Kenya (LSK) challenging the indefinite ban imposed on lawyer Ahmednasir Abdullahi and his associates.

Justice Chacha Mwita ruled that the High Court has powers to determine the petition, as anyone claiming infringement of constitutional rights and fundamental freedoms cannot be shut out but should be heard.

"The issues raised are under the jurisdiction of this court. The court has a duty to determine whether indeed rights and fundamental freedoms in the bill of rights have been violated or denied through the challenged action," Chacha said.

The Supreme Court judges led by Chief Justice Martha Koome had asked the court to strike out the case filed by the LSK saying it would be a breach of the court's hierarchy to entertain the matter.

Senior counsel Ochieng Oduol and Kamau Karori who represent the Supreme Court judges, filed an objection to the case saying that once the Apex court has decided on a particular issue and an order issued, the same cannot be the subject matter of supervision by the high court.

According to the Supreme Court judges, hearing the case before the High Court would lead to subversion of the Constitution and create an absurdity and embarrassment to the judicial system in the country.

The seven judges of the Apex court argued that they enjoy immunity under the Constitution and the Judicature Act and therefore cannot be sued for discharging their judicial duties.

But Justice Mwita said it is a cardinal principle in the Constitution that a petitioner who has come to court on the basis that his rights and fundamental freedoms have been violated or infringed, should be accorded an opportunity to be heard so that the court can make an informed decision on the issue.

On January 18 the apex court sent a letter addressed to Abdullahi stating that together with employees of his law firm, persons holding his brief or acting on his instructions will not be granted audience over his persistent attacks against the leadership and judges of the court.

The judges made good their threat a few days later when six judges recused themselves from hearing a case before them, as one of the respondents was represented by Abdullahi.

Dissatisfied with the decision, the LSK moved to the High Court, arguing that the decision to bar Abdullahi and his associates from appearing before the Supreme Court goes against the rules of natural justice since the lawyers were not given an opportunity to be heard despite the seriousness of the decision.

The LSK says the decision is unconstitutional, unreasonable and contrary to the statute.

The lawyers' body has sued the Supreme Court and named all the judges and the deputy registrar of the court as interested parties in the case.