Authored By: Brian Naheso
Introduction
Recent developments in Kenya such as the suspension of Judicial Service Commission’s disciplinary process have heightened concerns about the future of judicial accountability. In December 2025, the High Court suspended the Judicial Service Commission (JSC) from initiating further disciplinary proceedings against judges, citing violations of judges’ rights and the lack of a standardized and formal process
The regime is structured in such a way that it centers only on the removal of judges as a means of dealing with judicial misconduct. The laws and institutions such the JSC, the tribunal, courts and the President play a key role in enhancing judicial accountability. While the removal of judges may be required in some situations, it should not be the sole emphasis of resolving judicial misconduct. This design may be necessary in cases of serious misconduct, but it may fail to address fundamental concerns within the legal system that contribute to such behavior.
The country lacks specific procedures for addressing minor judicial misconduct, such as delays in delivering judgements, which do not warrant removal but still require accountability. The absence of clear mechanisms for addressing such infractions often results in consequences, such as unwarranted suspensions or reputational damage. There is a need to establish robust mechanisms for disciplining judges in line with the law regardless of breach.
Background
In Muya’s case, in line with Article 168 (2) of the Constitution, two complaints were filed against the Judge with the Judicial Service Commission. Having heard a case, he made a ruling but Contrary to practice, he delivered the written reasons five months later. The Commission formed a committee that found the learned judge complicit inordinately delaying the reasons’ delivery.
The committee determined that a prima facie case of gross misconduct, misbehavior, incompetence, lack of integrity and professionalism, Constitutional violations, and bias had been established against the judge. The committee recommended that the Commission petition the President to appoint a tribunal for further investigation.
In conformity with the Commission’s recommendations, the President put in place a tribunal to probe the Judge. It found the Judge guilty of gross misconduct and recommended that he be removed from office. The Judge, dissatisfied with the tribunal’s decision, petitioned the Supreme Court under Article 168 (8) of the Constitution. The court accepted that a lapse of five months is not, per se, excessive. It will only amount to an inordinate delay if it is inexcusable for lack of justification. The Judge had admitted the delay, offered a logical explanation, and expressed remorse.
The court ultimately determined that the Judge was not guilty of grave misconduct. This case highlighted the need to balance justice and accountability. The citizens expect judges to be both competent and accountable. In holding them so, they too have rights which should be respected including the right to fair hearing. The law and policies of a democracy can reflect the preferences and viewpoints of a diverse country only if citizens from all segments of society make their voices heard.
The Legal and Institutional Framework
The removal process begins with a petition to the JSC, which can be initiated by any person or body. The grounds and procedure for the removal of judges are clearly defined in the Constitution. These grounds are; inability to perform the functions of office arising from mental or physical incapacity; a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament; (c) bankruptcy; incompetence; or gross misconduct or misbehavior.
The petition to JSC on the misconduct of a judge must be in writing, spelling out the alleged facts constituting grounds for the judge’s removal. The commission carries out a preliminary inquiry and, if satisfied, a case has been made, sends the petition to the President.
Under Article 168 (5), the President suspends the Judge within 14 days after receiving the petition and appoints a tribunal. The remuneration and benefits payable to a judge who is suspended from office is adjusted to one half until such time as the judge is removed from, or reinstated in, office.
The tribunal then inquiries into the matter and makes recommendations to the president. After the tribunal submits its report to the President, his role is limited to acting on its recommendations. If the tribunal recommends the removal of the judge, he is removed from office. On the other hand, if the tribunal recommends against removal, the judge continues in office.
A judge subject to an inquiry may appeal to the Supreme Court within ten (10) days upon receipt of the tribunal’s recommendations. This effectively halts any action the President would have taken until after the appeal is heard and determined. After that, the President is bound by the Supreme Court’s decision.
The High Court in Nancy Makokha Baraza v Judicial Service Commission & 9 others [2012] eKLR noted that the dismissal of a judge of the superior court follows three stages: the Commission stage when the complaint is made; the consideration of determination of the complaint by the Commission; the Presidential stage when the Judge is suspended and a tribunal formed; the Tribunal stage when the Tribunal considers the facts in the petition to determine whether there are grounds for removal of a judge; and finally the Presidential or post-Tribunal stage when the President formally reinstates or removes the Judge depending on the recommendation made to him. In both instances, the President cannot do anything outside the recommendation the Commission or the Tribunal made to him.
Under the Judicial Service Act, JSC is a Constitutional body responsible for appointing, promoting, and disciplining Kenya’s judges and other judicial officers. The Act provides that the process the Tribunal is to follow for removing judges from office is a provided under the Second Schedule. It intends to ensure that judges are held accountable for wrongdoing and given a fair hearing and due process of law. The Act establishes a code of conduct for judges and other judicial officers, which sets out the ethical and professional standards they are expected to adhere to.
Challenges
Despite the existence of a comprehensive legal and institutional framework, challenges such as fair administrative action and the exercise of discretion have been experienced.
Disregard of the Right to Fair Administrative Action
One of the most constructive ways for Kenyans to experience the Constitution is through fair administrative action by either public or private bodies carrying out public functions. Article 47(1) of the Constitution guarantees everyone the right to fair administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. Article 47(2) of the Constitution widens the threshold regarding fair administrative action. It stipulates, ‘if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has a right to be given written reasons for the action.
The removal process must be conducted fairly and transparently with due regard for the judge’s rights and the principles of natural justice. It is important to note that disciplinary action against a judge does not necessarily imply that the judge is corrupt or incompetent. Instead, it is recognition that judges, like all individuals, are imperfect and may make mistakes or act inappropriately.
In the case of Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR the Court of Appeal confirmed that the JSC is governed by the principles of fair administrative action. The functions and powers of the commission are administrative in nature and which involve decision making process that may affect the rights of judges and officers of the Judiciary. This means that where the right of a judge is likely to be adversely affected by the exercise of the commission’s disciplinary powers, it is necessary for it to comply with Article 47 in the exercise of such powers.
Abuse of discretion
In Apollo Mboya v Judicial Service Commission & another; Justice Kalpana Rawal & 4 (Interested Parties) [2020] eKLR, the High Court declared that the Judicial Service Commission has no mandate to investigate and discipline a judge. The case was consolidated following Apollo’s petition against the removal from office of three other Justices for an alleged illegal strike. The proceedings before the JSC culminated in the admonition of the Judges.
Mr. Apollo was dissatisfied with JSC’s admonition as it was not anchored in law. He argued that upon the determination by JSC of misconduct against judges, it is not mandated and/or required to administer any other form of discipline and any such purported discipline such as admonishment was unconstitutional and was therefore null and void ab initio.
He sought a declaration that the delay by the commission of six months in dealing with the complaint was unconstitutional. The commission over the 6 months period had issued part determination and reserved other limbs of the petition to a futuristic date which he considered to be unreasonable. On the other hand, one of the justices contested JSC’s attempt to admonish her over alleged gross misconduct.
It was her case that Article 168 of the Constitution mandates the JSC, either on its own motion or by virtue of a petition, to forward the petition to the President once it makes a considered finding that the petition discloses grounds that may warrant removal of a judge. Her view was that it is the President’s Constitutional duty to form a tribunal and it is the tribunal that determines the substance of the petition and mete out disciplinary measures, if any. The steps taken by JSC were therefore to be considered ultra vires.
In his ruling, Justice Korir established that JSC has no Constitutional mandate to declare a judge guilty of misconduct. JSC is not mandated to administer any form of discipline against judges and therefore violated the Constitution by purporting to admonish the three superior court judges. The purported action taken against judges of the Supreme Court by JSC was unlawful and unconstitutional. It was held that the JSC has no power to “try” and “convict” a judge.
That power is by the Constitution reserved for the tribunal to be formed by the President where the JSC finds that the threshold for recommending the removal of a judge from office has been met. It was held that where the JSC finds no evidence that meets the threshold in Article 168(1) of the Constitution it must down its tools’.
In conclusion, JSC has the discretion to bring charges against the judge or disallow the complaints. This gives the Commission unchecked powers, which may be subject to abuse to the detriment of a judge against whom a complaint is brought. This discretion may jeopardize the constitutionally protected rights of the affected judges.
The dismissal of a Constitutional officeholder from office is a grave decision. It not only impacts livelihoods but also affects reputations, impinges on character and, lowers the esteem ascribed to, and erodes confidence in public office in the body politic.
Recommendations
To enhance independence of judges, complaints should be reviewed based on clear guidelines. The complainants should know the type of complaints that will be considered. This will be achieved by assessing whether the judge in question violated the particular grounds laid out in Article 168 of the Constitution. Frivolous and vexatious complaints based on judges’ official duties will be discouraged from being filed.
Adopt a multi-institutional framework during the investigation process. Where a judge is for example accused of corruption, the Ethics and Ant-Corruption Commission may be involved.
Provide for remedial steps for lesser infractions. In addition to the option of removal provided under Article 168 of the Constitution, other measures to be taken by JSC should be anchored in law. The measures will be designed to maintain the integrity and effectiveness of the judiciary while offering alternatives to removal in cases where the gravity of the offense might not warrant such a severe outcome. These may include corrective training or education, imposing censures or reprimands, and the judge can be asked also to compensate the complainant, suspended or asked to pay a fine.
To ensure continuous general public satisfaction, the judiciary should promote accessibility of information: The judiciary should engage in civic education to enhance the judiciary’s transparency and accountability. Most Kenyans do not know of the procedures used in judicial processes. The procedure for lodging complaints should be widely accessible to the public, legal professionals, and relevant stakeholders. This could involve enhancing data security of the JSC online portal and providing contact information. This will in turn enhance confidentiality of complainants and the sensitive information involved, while still maintaining transparency in the overall process.
Conclusion
The primary law governing judicial discipline in Kenya is the Constitution and the Judicial Service Act which designates the Judicial Service Commission (JSC) as the authority in charge of punishing judges. The Constitution provides for the removal of judges in specific circumstances. Among the reasons for removal specified in Article 168(1) is incompetence, gross misconduct or misbehavior. Article 168(2) provides for the procedure for the removal of a judge. The Judicial Service Commission (JSC) is responsible for investigating complaints against judges and making recommendations to the President, who may then appoint a tribunal to investigate the matter further. The tribunal then makes recommendations to the President to either remove the judge from office or not.
It’s worth noting that while the Constitution provides protections for the security of tenure of judges, the practical implementation and effectiveness of these provisions can sometimes be influenced by broader political, social, and institutional factors. Ensuring a strong and independent judiciary requires a commitment to upholding the principles of judicial independence and the rule of law at all levels of society.
Bibliography
Online materials
https://www.capitalfm.co.ke/news/2025/12/jsc-appeals-high-court-ruling-suspending-petitions-against-judges/ Accessed 13 January 2026
https://judiciary.go.ke/download/the-judicial-service-code-of-conduct-and-ethics-regulations-2020/ Accessed 13 January 2026
https://judiciary.go.ke/downloads-reports/ Accessed 13 January 2026
https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/16/eng@2022-05-19 Accessed 13 January 2026
https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/9225/eng@2020-05-14 Accessed 13 January 2026
https://nairobilawmonthly.com/right-to-fair-administrative-action-panacea-to-lazy-service-delivery Accessed 13 January 2026
https://kenyalaw.org/kl/ Accessed 13 January 2026
Case Law
Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya [2022] KESC 16. In The Supreme Court of Kenya Civil Petition 4 of 2020 (19 May 2022 Judgment)
Tribunal Set up to Investigate the Conduct of the Hon. Mr. Justice (Prof.) Jacton B. Ojwang
Nancy Makokha Baraza v Judicial Service Commission & 9 others [2012] eKLR
Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR
Apollo Mboya v Judicial Service Commission & another; Justice Kalpana Rawal & 4 (Interested Parties) [2020] eKLR
Books
Daniel M. Shea et al; Living Democracy, Brief National Edition, (3rd ed, 2011)
Gupta, Y.C., [2022] THE INTEGRATED JUDICIAL SYSTEM AND METHODS FOR SECURING INDEPENDENCE OF JUDICIARY. In Narender Kumar Bishnoi, Amit Verma Judicial Independence & Accountability
Journal Article
Frank, Jerome. “Are judges human? Part one: The effect on legal thinking of the assumption that judges behave like human beings.” University of Pennsylvania Law Review Vol 80 (1931)
