Last Updated on February 27, 2026 by courtnews reporter
George Oraro Defends Martha Koome as Supreme Court Judges Challenge JSC Complaints
Senior Counsel George Oraro on Friday defended Chief Justice Martha Koome in a constitutional petition challenging complaints filed before the Judicial Service Commission (JSC).
The matter was heard before Justices Charles Kariuki, Lawrence Mugambi and Bahati Mwamuye at the Milimani Law Courts.
At the centre of the dispute is whether the JSC can entertain complaints arising from Supreme Court decisions.
“The Only Remedy Is an Appeal”
George Oraro argued that the Constitution provides only one remedy for a judicial error: an appeal.
However, he emphasized that the Supreme Court is the final court under the Constitution.
Therefore, he said, there can be no further appeal and no disciplinary shortcut.
“The JSC has no power to review or correct decisions of the Supreme Court,” Oraro told the bench.
Complaints Filed by Nelson Havi, Ahmednasir Abdullahi and Raphael Tuju
The complaints before the JSC were filed by former Law Society of Kenya President Nelson Havi, Senior Counsel Ahmednasir Abdullahi and former Cabinet Secretary Raphael Tuju.
Their grievances arise from Supreme Court proceedings involving them or their clients.
According to Oraro, the complaints do not meet the threshold under Article 168 of the Constitution.
He argued that they are based on dissatisfaction with judicial decisions rather than grounds such as mental incapacity, corruption, bankruptcy or gross misconduct.
Warning Against Turning JSC into a Court of Appeal
Oraro cautioned that allowing the JSC to proceed would effectively convert it into a court of appeal over the Supreme Court.
He described this as a “review of rulings through the back door.”
To strengthen his argument, Oraro cited the U.S. Supreme Court case Brown v. Allen.
He referred to Justices Brown and Jackson, who stated that a court is not final because it is infallible, but infallible because it is final.
He said the same principle applies in Kenya’s constitutional framework.
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Reference to Constitution of Kenya Review Commission
Oraro also relied on the final report of the Constitution of Kenya Review Commission.
He told the court that the report emphasized the need for an independent judiciary free from interference.
Additionally, he cited a Ugandan Supreme Court precedent which distinguishes between reviewing judicial acts and disciplining judges for misconduct.
According to him, legal error alone cannot justify removal proceedings.
Institutional Decision, Not Individual Conduct
Oraro stressed that Supreme Court decisions are institutional decisions.
He explained that when five judges sit as required by the Constitution, the ruling becomes that of the court, not individual judges.
Holding individual judges accountable for institutional decisions, he argued, would undermine constitutional logic.
He also invoked the Latin maxim interest reipublicae ut sit finis litium, meaning litigation must come to an end.
DCJ Mwilu’s Position
Deputy Chief Justice Philomena Mwilu, through advocate Winnie Bett, supported the argument.
Bett told the court the matter concerns institutional design.
“This case is not about whether the Supreme Court was right or wrong. It is about constitutional structure,” she submitted.
She further argued that the absence of properly enacted disciplinary regulations for superior court judges renders the JSC process unlawful.
JSC Responds
JSC counsel Issa Mansur opposed the petition.
He argued that the commission acted within its constitutional mandate to receive and investigate complaints.
He urged the court to dismiss the applications and allow the JSC process to proceed.
Decision Pending
The High Court reserved its ruling on whether to quash the complaints and halt the JSC proceedings.
The outcome will clarify the limits of the Judicial Service Commission’s powers over Supreme Court judges.
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