The High Court has barred the Judicial Service Commission (JSC) from proceeding with complaints and petitions against judges until it formally gazettes regulations governing how such complaints should be handled.
In a decision delivered in Petition No. E110 of 2025, the court found that the JSC has, since 2011, failed to operationalise regulations required under Section 47 of the Judicial Service Act, rendering its current processes opaque and constitutionally infirm .
The petition was filed by an advocate representing a judge who is facing an ongoing complaint before the JSC, arising from allegations of delay in delivering a ruling in a bail application and the alleged loss of a criminal court file .
The petitioner challenged the legality of the JSC’s internal procedures, arguing that the Commission relies on undocumented and unpredictable processes that have never been enacted or gazetted, in violation of the Constitution and the Judicial Service Act.
The court agreed, holding that the absence of clear regulations violates the right to fair administrative action under Article 47 and the right to a fair hearing under Article 50(1) of the Constitution .
In rejecting the JSC’s argument that the petition was premature, the court ruled that litigants are not required to wait for an unconstitutional administrative process to run its course before seeking judicial intervention. It further held that once a complaint against a judge is ripe for hearing, there are no alternative remedies available to exhaust within the JSC framework .
A central concern raised by the court was that, without regulations, judges facing complaints cannot tell whether they are undergoing a mere administrative inquiry or a process that could lead to removal from office under Article 168 of the Constitution.
Citing the Supreme Court decision in David Gitonga Karani v JSC (2021), the court emphasized that judges must be clearly informed of the nature and consequences of proceedings brought against them .
The court described the prolonged delay in formulating regulations as unjustifiable and inconsistent with constitutional guarantees, noting that allowing the JSC to proceed without rules would amount to condoning an illegality.
However, the court declined to delve into the merits of the specific complaint before the JSC, holding that such inquiry falls squarely within the Commission’s constitutional mandate once proper regulations are in place .
