DNK International By Alphonce Mungahu,Milimani Court.
The Judicial Service Commission (JSC) has been stopped from pursuing the removal of Environment and Land Court Judge Anthony Ombwayo over alleged conflict of interest in a land dispute.
In a judgment by a three judge bench comprising Justices Jemimah Wanza Keli, Onesmus Makau and Jacob Gakeri on Friday ruled that a letter by lawyers acting for litigant Juma Okumu that triggered the JSC proceedings against Justice Ombwayo was not a valid petition for his removal as 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 stated
Justices Keli, Makau and Gakeri however permanently barred the Commission from proceeding with JSC Petition No. 49 of 2025 and from forwarding it to President William Ruto for possible formation of a tribunal.
The judges said the March 14, 2025 letter was addressed to the Chief Justice and sought administrative action to have files handled by Justice 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 had been written by Keaton & Keaton on behalf of Juma Okumu, who was involved in two Nakuru Environment and Land Court matters handled by Justice Ombwayo.
The lawyers had complained about alleged 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 assigned the complaint Petition No. 49 of 2025 and invited the judge to respond.
Justice Ombwayo, through his lawyer Neville Amolo, however, argued that the letter was never a removal petition.
Amolo told the court that his client had issued directions that the cases be determined through affidavit evidence and that the decision had not been reviewed or 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 aggrieved party sought the judge’s recusal and approached the Chief Justice seeking reallocation of the cases.
He further argued that the complainant, through Keaton & Keaton Advocates, had withdrawn the complaint on February 12, 2026, one day before Justice 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 that the Commission was 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 maintained that the case before the court was premature because its own process had not been completed.
The three judges disagreed, holding that there was no valid Article 168 petition in the first place.
They said the JSC could not rely on its power to initiate proceedings on its own motion to breathe life into 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’s process amounted to interference with Justice Ombwayo’s decisional independence because the allegations were closely tied 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 for Justice Ombwayo, declaring that no Article 168 petition had been presented against him and that the March 14 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,” they heldl
The court also issued a permanent injunction restraining the JSC from proceeding with JSC Petition No. 49 of 2025, as contemplated in its letters dated January 14 and January 27, 2026.
[Daily News Kenya-International@October 4,2026]
