Supreme Court judges led by Chief Justice Martha Koome now want their names struck out from a petition filed by the Law Society of Kenya (LSK) challenging the decision barring Senior Counsel Ahmednasir Abdullahi from appearing before the apex court.
The judges said, in response filed to the case, that they enjoy immunity as granted to them by the Constitution and the Judicature Act and, therefore, cannot be sued in relation to decisions made while discharging their judicial duties.
The Supreme Court judges further said the High Court has no powers to determine the case as it seeks to challenge orders given by judges of a higher court.
“The petition, if allowed to proceed, would occasion inevitable subversion of the Constitution and create and absurdity and embarrassment to the judicial system in Kenya,” the judges of the apex court said.
The LSK moved to the High Court last month arguing the decision to bar Abdullahi and his associates from appearing in court.
The judges are named as interest parties in the suit.
In a preliminary objection dated February 16, the Apex court says that the petition filed by the law body is defective as it seeks to challenge the recusal order it issued on January 23.
“Pursuant to Article 163(7) of the Constitution, the decisions of the Supreme Court (whether in exercise of its original or appellate jurisdiction) are binding on all the other Courts (including this Honourable Court) except the Supreme Court.”
They say that the High Court is barred from exercising jurisdiction over matters reserved for the exclusive jurisdiction of the Supreme Court.
Furthermore, the Apex Court says that the High Court has no jurisdiction to hear the challenge relating to the letter by the registrar of the Supreme Court dated January 18, barring Ahmednasir either by himself, an employee of the law firm or any other person holding brief or acting pursuant to his instructions
“The letter is not a decision but merely conveyed the decision of the Judges of the Supreme Court not to give audience to the 1st Interested party which decision was formalized by the Recusal Order made by the Judges of the Supreme Court on January 23.”
The Apex Court and registrar of the Supreme Court say the petition is in bad law and an abuse of the court process
Subsequently, they urged the court to dismiss the petition in its entirety.
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