AG backs Supreme Court Judges against Havi in battle over a three-judge bench

Supreme Court Judges, Attorney General, on Friday battled with lawyer Nelson Havi over the Chief Justice Martha Koome’s powers to empanel a bench to hear cases where she is a party.

On one hand, the judges of the apex court and Dorcas Oduor insisted that Justices Charles Kariuki, Bahati Mwamuye and Lawrence Mugambi are independent and competent to hear the cases they had filed.

The former Law Society of Kenya president argued that Justice Koome ought to have delegated the duty to appoint Judges who are to hear her case to her deputy, Justice Philomena Mwilu. He claimed that ‘ he feared’ he would lose the application and subsequently the case.

Havi was seeking to have Justices Kariuki, Mwamuye and Mugambi withdraw from the cases where the Supreme Court Judges sued the Judicial Service Commission (JSC), over petitions he filed seeking their removal from office.

He argued that there was a gender issue as the CJ had appointed an all-male bench. At the same time, he said that the CJ ought to have considered seniority and that she sat when Justice Mwamuye and Mugambi were being interviewed for the jobs.

“ The Chief Justice ought to have delegated her role to the Deputy Chief Justice. I humbly request that you return this file to delegate to the Deputy Chief Justice the file she is the petitioner, and to appoint a bench for the remaining six files,” argued Havi.

In her reply, the CJ argued that she had no vested interest while appointing the bench.

Justice Koome’s lawyer, George Oraro said that the issue raised by Havi had already been settled separately by Justices Mwamuye and Mugambi. He asserted that the cases involved all the Supreme Court Judges and there could be no distinction on who between the CJ and the Deputy ought to appoint a bench.

“ The only route available for my friend is to apply for a review or an appeal. You cannot put one file before Justice Mwilu and the others before Justice Koome. The law is clear that the powers to appoint a bench is delegated to the Chief Justice,” he said.

The senior lawyer asserted that there is no window for the court to return the file to her with an order that she hands the same to Mwilu for fresh appointment.

He added that the CJ is expressing her right to approach the court for a violation of a rights, just like any other Kenyan.  He insisted that there are benches which are all women while others are composed of male Judges.

“ The application is unmerited and speculative,” replied Oraro.

Justice Njoki Ndung’u backed the CJ’s submissions. Her lawyer Andrew Musangi argued that she is the only person allowed by the Constitution to appoint Judges to hear cases in expanded benches.

He argued that in the current cases, the CJ has not made any ruling or judgment, which would vest an interest on the outcome of the case.

According to Justice Ndung’u the office of a Judge is independent and no one can control or pressure them to issue an order either way. According to her, Judges take an oath of office and not allegiance to any person or body.

Justices Isaac Lenaola, William Ouko and Smokin Wanjala said that if the court weighs on Havi’s argument that Justices Mwamuye and Mugambi should not seat as she was among those who interviewed them, it would mean that all Judges ought not to hear any case against Presidency, as the President appoints all Judges.

The Attorney General Dorcas Oduor on the other hand said that she has confidence with the court.

Senior State Counsel Emmanuel Bitta argued that Havi was seeking a review through the back door.

According to Bitta, the only channel available for Havi was to file a Judicial Review case as the empanelment was an administrative role of the CJ.

In the meantime, Katiba Institute lawyer Joshua Malidzo argued that Havi’s application mutated from one ground of bias on the Chief Justice.

“ It was not about the gender of the bench and seniority. As such, Havi cannot amend that application through oral submissions,” he argued.  

He however, said that the Judicial Service Act is silent on whether CJ should observe the two-thirds gender rule while appointing judges to a bench.

Ruling will be on November 13,2025.