By ALPHONSE MUNGAHU
The Judicial Service Commission (JSC) has been barred from pursuing the removal of Environment and Land Court Judge Anthony Ombwayo over alleged conflict of interest in a land dispute.
A three-judge bench comprising Justices Jemimah Wanza Keli, Onesmus Makau and Jacob Gakeri ruled on Friday that a letter by lawyers representing litigant Juma Okumu, which triggered the JSC proceedings against Ombwayo, did not constitute a valid petition for the removal of a judge under Article 168 of the Constitution.
“The court holds that the letter dated March 14, 2025 by M/S Keaton & Keaton Advocates is not a valid Petition under Article 168. The court further holds that the JSC violated Justice Ombwayo’s right to fair administrative action and that its actions violated the independence of the Judiciary,” the judges ruled.
The court permanently barred the JSC from proceeding with Petition No. 49 of 2025 or forwarding it to President William Ruto for consideration of the formation of a tribunal to investigate the judge.
The judges said the March 14, 2025 letter was addressed to the Chief Justice and sought administrative action to have cases handled by Ombwayo transferred to another judge rather than seeking his removal from office.
“The letter does not meet the threshold of a Petition under Article 168 because it is and was never addressed or formally forwarded to the Commission and it was not intended for removal of the judge as required by Article 168(3),” the judges held.
The letter was written by Keaton & Keaton Advocates on behalf of Okumu, who was involved in two Nakuru Environment and Land Court matters handled by Ombwayo.
The lawyers had raised allegations of conflict of interest, an alleged relationship between the judge and businessman Joshua Kulei, alleged financial benefits and a ruling they claimed was contrary to a binding Supreme Court decision.
The JSC subsequently classified the complaint as Petition No. 49 of 2025 and invited Ombwayo to respond.
The judge, through his lawyer Neville Amolo, argued that the letter was never intended to be a petition seeking his removal.
Amolo told the court that his client had directed that the cases be determined through affidavit evidence and that the decision had neither been reviewed nor appealed.
“A Judge sitting in that capacity has decisional autonomy and independence, and the only way to challenge the decision is by an Appeal, not by seeking recusal or removal,” Amolo submitted.
He argued that instead of challenging the judicial decisions through the appellate process, the complainant sought Ombwayo’s recusal and approached the Chief Justice seeking reallocation of the cases.
Amolo further told the court that Keaton & Keaton Advocates withdrew the complaint on February 12, 2026, a day before Ombwayo filed his constitutional petition challenging the JSC process.
The lawyer maintained that the JSC could not continue pursuing the complaint after its withdrawal and remained subject to the supervisory jurisdiction of the courts.
The JSC, however, argued that it had constitutional powers to initiate removal proceedings on its own motion and that the withdrawal by the original complainant did not extinguish the matter.
The Commission also argued that Ombwayo’s case was premature because its internal process had not been completed.
The three judges rejected the argument, holding that there was no valid Article 168 petition in the first place.
They said the JSC could not use its power to initiate proceedings on its own motion to revive an invalid complaint.
“The Commission’s power under Article 168(2) to initiate removal proceedings suo motu cannot be used to validate an invalid Petition,” the court held.
The judges further found that the JSC process amounted to interference with Ombwayo’s decisional independence because the allegations were closely linked to his judicial decisions.
“The proper way to challenge a Judge’s decision is through appeal or review, not through removal proceedings,” the court said.
The court entered judgment in favour of Ombwayo, declaring that no valid Article 168 petition had been presented against him and that the March 14, 2025 letter did not constitute such a petition.
“Accordingly, we find that the letter dated March 14, 2025 by M/S Keaton & Keaton Advocates is not a Petition within the meaning and intendment of Article 168(1), (2) and (3) of the Constitution of Kenya, 2010,” the judges held.
The court also issued a permanent injunction restraining the JSC from proceeding with Petition No. 49 of 2025, as contemplated in its letters dated January 14 and January 27, 2026.
