LSK criticises court judgement that stopped proceedings against judge 

The Law Society of Kenya (LSK) criticised a High Court judgement that halted disciplinary proceedings against a judge.

They alleged that the decision risks paralysing constitutional accountability mechanisms within the Judiciary.

In a statement by its President, Faith Odhiambo, the Society expressed profound disagreement with the judgement delivered on December 18, 2025, by a three-judge bench comprising Justices Aburili, Chigiti and Muteti in HCCHRPET/E110/2025, Kennedy Echesa Walubengu v State Law Office & Another.

The case arose from a complaint lodged before the Judicial Service Commission (JSC) against Lady Justice Dorah Chepkwony by an advocate representing an accused person appearing before her.

Upon receiving the complaint, the JSC initiated a preliminary inquiry under Article 168 of the Constitution, notified the judge of the allegations and invited her response.

The Commission later admitted the complaint for oral hearing and scheduled it before a duly constituted panel.

However, before the JSC could conclude the process, the advocate acting for Justice Chepkwony filed a constitutional petition challenging the Commission’s jurisdiction and procedure.

The petition questioned the absence of gazetted regulations governing the handling of complaints against judges, alleged interference with judicial independence and argued that the complaint had been overtaken by events following the delivery of a ruling that had allegedly been delayed.

The High Court was asked to determine whether it should intervene in an ongoing constitutional process before the JSC.

In its judgement, the Court held that proceeding with disciplinary proceedings in the absence of gazetted regulations would amount to an illegality and render the entire process a nullity.

The LSK faulted that finding, arguing that the absence of subsidiary legislation or detailed procedures cannot suspend or defeat a constitutional mandate.

According to the Court of Appeal, the society said, where no specific procedures exist, the JSC retains administrative discretion to adopt any fair procedure appropriate to its task.

LSK also accused the High Court of misapplying binding Supreme Court precedent.

While acknowledging that the Supreme Court directed the JSC to gazette its regulations within 90 days, the LSK argue that failure to do so could not lawfully impede the Commission from exercising its constitutional mandate.

It maintained that constitutional bodies derive their authority directly from the Constitution and cannot be rendered inoperative by procedural gaps.

“While the promulgation of clear procedures enhances transparency and predictability, procedural gaps cannot be invoked to defeat or paralyse constitutional accountability mechanisms,” said LSK.

According to LSK, the judgement sets a dangerous precedent by effectively suspending lawful constitutional functions for want of procedural guidelines.

The Society warned that such an approach undermines public interest and risks eroding confidence in the Judiciary, particularly at a time when concerns over integrity, corruption and incompetence among some judicial officers continue to mount.

The LSK further said that the decision exposes a longstanding institutional failure by the JSC to gazette disciplinary procedures, despite a clear Supreme Court directive.

It said the failure should be treated as a matter of extreme urgency and placed at the top of the Commission’s priorities going into the new year.

The Society also expressed concern over what it described as a growing trend of judges and judicial officers using court processes to block accountability through the JSC.

It warned that unchecked, such practices could turn judicial independence into a shield for impunity and ultimately cost the Judiciary its legitimacy and public goodwill.

“The Constitution did not intend judicial authority and independence to make judges irreproachable,” the statement said, adding that judicial independence must coexist with accountability.

LSK said it will take all necessary measures to challenge the decision, including joining appellate proceedings once filed.

It also pledged to pursue immediate corrective engagement with the JSC over its failure to gazette disciplinary procedures, warning that continued inaction jeopardises the Commission’s constitutional mandate.

“The current state of accountability within the Judiciary does not inspire confidence among members of the bar, and such a decision raises serious questions whether the Judiciary truly appreciates the value of the Judicial independence we so strongly defend,” read the statement.