https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8927

Momanyi v Chairperson, the Judicial Service Commission Hon Lady Justice Martha Koome & another (Petition E807 of 2025) [2026] KEHC 8927 (KLR) (Constitutional and Human Rights) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8927 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E807 of 2025 G Mutai, J June 23, 2026 Between Rev Bishop Brethren Nemwel Momanyi Petitioner and The Chairperson, the Judicial Service Commission Hon Lady Justice Martha Koome 1st Respondent The Secretary, the Judicial Service Commission Hon Winfridah B Mokaya 2nd Respondent Ruling 1.The petitioner, who describes himself as the Patron of the Gusii Regional IDPs Steering Committee and the IDPs Fraternity, is aggrieved by the Judicial Service Commission's decision not to take action against 2 Judges whose removal he had previously sought. His complaint against the said Judges was that they had been compromised, thereby preventing him and the people he represents from obtaining justice. 2.He therefore filed the instant petition seeking the removal of the Chairman of the Judicial Service Commission and the Secretary of the said Commission. The Petitioner was categorical that he sought the removal of the officeholders named as respondents from exercising their duties in their respective capacities, but not from their substantive positions. It would appear to me that although this matter is indicated as being a Constitutional Petition, the same was commenced by way of a Notice of Motion application dated 5th December 2025, which sought the following orders, which I shall state verbatim:1.That this Petition be certified as urgent and same be heard ex-parte in the first instance owing the urgency involved;2.That the court be pleased to grant injunctive/interim, conservatory order(s) for removal of the Respondents from office by virtue of misusing powers and abuse of office on corruption malpractices, being influenced by an act of compromise(s) and personal conflict of interest(s) from Hon. Judges to force and mandate the petitioners move to East African Court of Justice after being in Kenyan courts for 17 years annexed supportive documentations on the affidavit;3.That removal of petitions were served through the office of Registrar of Judicial Service Commission where service was duly done by G4S Service Courier Waybill annexed on the affidavit;4.That after service was done since then there is no rebuttal showing the petitions were delivered and served up to date, annexed document on the affidavit to support the service herein;5.That also the 13A Notice on Government Proceedings Cap 40 Laws of Kenya sent to Attorney General Office, Law office, Kenya Human Rights Office for instituting proceedings as per Article 22, 258, No any rebuttal made or for admitting court finalization or other way purpose but due to powers and office, nothing has been done, which forces and mandates this Petition, hence mandates copy sent to His Excellency the President Dr. William Samoei Ruto annexed in support on the affidavit;6.The costs of this Petition be provided for; and7.Any other orders that meet the ends of justice. 3.As far as I can tell, noting that the “Petition’, as it were, is fairly inscrutable, the Petitioner is of the view that the respondents protected the 2 Judges whose conduct the Petitioner impugns. He feels that the respondents frustrated his efforts to obtain justice. He seeks to have the respondents interdicted, dismissed, and removed in accordance with Article 75(2) and (3) of the Constitution. 4.The petition was supported by the annexed affidavit of Rev Bishop Brethren Nemwel Momanyi, further affidavits he subsequently filed, and the annexures attached thereto. 5.Upon being served, the Respondents entered an appearance through their counsel, Robert Kibor. The said counsel filed Grounds of Opposition dated 2nd March 2026 in which it was urged that this court has jurisdiction to hear and determine the matter, that a reasonable cause of action had not been disclosed, and that the Petitioner had not been pleaded with reasonable precision. Further, the decision of the Judicial Service Commission was a corporate decision of the said commission. It was stated that the Petitioner sought to circumvent the disciplinary framework established under Articles 168 and 172 of the Constitution of Kenya. Further, the Petitioner had contemporaneously filed a removal petition with the Judicial Service Commission based on the same factual matrix, and, as such, was engaged in forum shopping. Lastly, it was denied that the test for conservatory orders had been met. 6.The Respondents' counsel also filed a Notice of Preliminary Objection dated 2nd March 2026, in which this court’s jurisdiction was challenged. 7.Since the Preliminary Objection was in regard to the jurisdiction of the Court, I directed that the same be heard first. In making the said decision, I was guided by the case law. 8.In the Case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), Nyarangi JA stated that:-“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity, and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction…” 9.Similarly, in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court of Kenya emphatically stated that:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 10.As I understand them, these authorities require this court to consider and determine whether it is lawful for it to hear the matter, “right away”, the moment the court’s jurisdiction is questioned. If the court lacks jurisdiction, it must lay down its tools immediately. 11.The objection was canvassed by way of written submissions. I shall give a précis of the parties' submissions below. 12.In his submissions, counsel for the Respondents submitted that the process by which his clients may be removed is governed by Articles 168 and 172 of the Constitution, and as such, this Court lacked jurisdiction to hear and determine the instant matter. He contended that the question as to whether this Court has jurisdiction to hear and determine the matter was a pure point of law and that, for that reason, the preliminary objection was rightly taken. In support of the said contention, the Court was referred to the following cases: Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR (Civil Appeal 50 of 1989). Counsel thus urged this Court to uphold the Preliminary Objection and to strike out the Petition in limine, with costs to the Respondents. 13.The Petitioner’s submissions, on the other hand, are undated. He identified the issues for determination as being whether this Court has jurisdiction and whether the Petition is sub judice. 14.Regarding the first issue, the Petitioner contended that Article 165 of the Constitution conferred unfettered powers on the Court to consider allegations of breaches of human rights and fundamental freedoms and to issue appropriate relief. It was further contended that the rights of the Petitioner and the people he represents had been violated, and that the High Court was therefore the most appropriate forum for the redressal of their grievances. He submitted that it had not been shown that the Court lacked jurisdiction. 15.Rev Bishop Momanyi submitted that striking out the Petition was not warranted. He urged that the Court should not strike out his Petition, contending that such a drastic remedy should be applied sparingly and only in the clearest of cases. 16.He urged that the Petition was not res sub judice. In support of his contention, the Petitioner relied on the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR), where it was stated at paragraph 67 that:“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 17.The Petitioner filed Further Submissions dated 4th May 2026 in which he reiterated his previous submissions. 18.I have considered the Petition, the objection of the Respondents, as well as the applicable law. It would seem to me that the grievance of the Petitioner is that the Respondents failed to consider their petition for the removal of Lady Justice Patricia Gichohi and Lady Justice Theresa Achieng Odera. They see in the respective decisions what they consider to be a dereliction of duty by the Respondents and a conspiracy to defeat justice. For that reason, he seeks their removal. 19.On their part, the respondents contend that this court lacks jurisdiction and should put down its tools. It is urged that the Constitution of Kenya, 2010, has remedies that the Petitioner could have used and that the court should, pursuant to the doctrines of constitutional avoidance and exhaustion or available remedies, not take up the matter. 20.This court notes that the Chief Justice is the Chairperson of the Judicial Service Commission by virtue of holding the office of the Chief Justice. Her position as the Chairperson of the Commission flows directly from her role as the Chief Justice. Upon her ceasing to be the Chief Justice, her status as the Chairperson ceases immediately. She cannot, therefore, be removed as the Chairperson of the Judicial Service Commission so long as she is the Chief Justice, as the two positions are inextricably linked. This is clear from Article 171 (2) (a) of the Constitution. Thus, in order to remove the Chairperson of the Commission from her position, she must first be removed as the Chief Justice. 21.From the foregoing, the proper way to remove the Chief Justice is by way of a petition to the Judicial Service Commission pursuant to Article 168 of the Constitution. It would appear to me that the Petitioner is aware of this, as the Respondents’ counsel stated that the Petitioner filed a petition with the Judicial Service Commission. 22.Similarly, the Chief Registrar of the Judiciary may be disciplined in the manner provided in Article 172 of the Constitution. 23.The Petition has submitted that this Court has jurisdiction. He contends that under the provisions of Article 75(2) and (3) of the Constitution, the Respondents may be removed from their current positions. My view is that the removal process under the said provisions is an internal institutional process, which the Petitioner has abjured. 24.Whereas this court may hear petitions alleging violations of rights and fundamental freedoms enshrined in the Bill of Rights of our Constitution, the doctrine of avoidance calls on this court not to settle disputes that can conveniently be dealt with in other fora. 25.In the case of Ibrahim Wakhanyanga & 2 others v Chief Magistrate’s Court Kakamega & 2 others; Attorney General for Land Registrar Kakamega (Interested party) [2022] KEELC 1072 (KLR), the court held that:“17.One of the instances in which a constitutional court loses jurisdiction is through the doctrine of constitutional avoidance. Thus, where there exist ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain such a dispute. A party seeking relief in a matter that can be addressed through interpretation of statutes and rules made thereunder must seek relief through an ordinary suit as opposed to a constitutional petition. In that regard, the Court of Appeal stated in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR as follows:… where a legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. That principle has been reinforced by the Supreme Court in Communications Commission case (supra)…” 26.A similar decision was made by the Supreme Court of India in the case of In re Application by Bahadur [1986] LRC (Const), where the Indian apex Court expressed itself as follows at page 307:-“The courts have said time and again that where infringements of rights are alleged to be founded in a claim in substantive law, the proper cause is to bring the claim under such law and not under the Constitution.” 27.It is clear that there are other remedies the Petitioner should have pursued. He can still prosecute his claim before the Judicial Service Commission. In my view, this petition offends the doctrine of constitutional avoidance and should fail on that ground. 28.Even if I were wrong, the petitioners were obliged to exhaust available remedies. It has not been shown that pursuing a petition before the Judicial Service Commissions is unavailable or impractical. 29.In the case of Geoffrey Mutunga Kabiru & 2 Others v Samuel Munga Henry & 1756 others [2015] eKLR, the Court of Appeal stated that:-“The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanism in place for the resolution of disputes outside the courts.” 30.Whereas there are exceptions to one said doctrine, as recognized in the Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] KECA 341 (KLR), the exceptions do not apply here. 31.In my view, the prayers sought by the petitioners, to wit, the suspension of the Chief Justice and Chief Registrar of the Judiciary, are not matters that this court has jurisdiction to determine. 32.I note that the Petition, as drafted, is imprecise and lacks clarity. Although Article 22 (3)(b) of the Constitution enjoins this Court to keep formalities to the minimum in Constitutional litigation, and permits proceedings founded on informal documentation, the need for the pleadings to be clear as to what the breaches complained of are, and what the remedies are sought, is not taken away. The Respondents have a right to a fair trial under Article 50(1) of the Constitution. And the said right is, under Article 25(c) of the Constitution, non-derogable. The Respondents must know what the Petitioner’s grievance is so as to be able to respond to it. 33.In the case of Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR), the Court held that:“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 34.The above decision was reaffirmed in the case of Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR), where the Court of Appeal held as follows:“However, our analysis cannot end at that level of generality. It was the High Court’s observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim, as it has been in recent times with increased frequency, that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.” 35.Lastly, since there is a similar matter before the Judicial Service Commission, and noting that the said Commission has jurisdiction to hear and determine the same, it would appear to me that this matter is res subjudice. 36.It has been argued that the remedy of striking out petitions should be resorted to sparingly. That is indeed the case. But where the court is faced with a Petition that is so clearly bereft of merit, the court should not shirk its duties; it must take up its tools, in a manner of speaking, and strike out the matter. To do anything else is a dereliction of duty. 37.In the circumstances, I strike out the Petition. The Court file shall be closed forthwith. 38.The parties shall bear their own costs. 39.It is so ordered. DATED AND SIGNED IN NAIROBI, THIS 23RD DAY OF JUNE 2026.GREGORY MUTAIJUDGEIn the presence of:Mr Owiti, for the 1st and 2nd Respondents;Bishop Rev. Brethren Nemwel Momanyi (Pro se litigant); andMs Lwambia – Court Assistant.