The judgment delivered by the Employment and Labour Relations Court in Justice Anthony Ombwayo v Judicial Service Commission sets a deeply troubling precedent for public accountability and the rule of law in Kenya. Under the guise of safeguarding judicial independence, the three-judge bench has effectively constructed an impenetrable fortress around judicial misconduct, signaling to the public that when judges are accused of impropriety, the bench will readily step in to insulate its own.
At the core of this controversy is an elementary demand for justice. Keaton & Keaton Advocates, acting for a litigant, protested the judge's insistence that highly contentious land disputes involving allegations of fraud and corruption be heard strictly via affidavit evidence. Insisting on affidavits over viva voce evidence prevents oral testimony and cross-examination—the very crucible through which truth is tested in contentious matters. No reasonable judge committed to the discovery of truth should stand in the way of cross-examination in matters of such gravity. To arbitrarily foreclose that avenue is to abandon the role of an impartial arbiter and enter the arena as an interested player.
Yet, when this conduct was flagged alongside grave allegations of undisclosed conflicts of interest, financial benefits, and ties to a key litigant, the court took shelter in hyper-technicalities. The bench ruled that the complaint was not a valid "petition" within the meaning of Article 168 because it was framed as an administrative letter to the Chief Justice. This pedantic reasoning ignores the substance of the Constitution. Under Article 168(2), the Judicial Service Commission (JSC) is explicitly empowered to initiate removal proceedings on its own motion (suo motu). It is entirely immaterial whether Keaton’s letter strictly observed the formalities of a petition. Once credible, egregious allegations of corruption or bias enter the public domain, the JSC is constitutionally bound to probe them regardless of form or whether an intimidated complainant later purports to withdraw the complaint.
Worse still is the court’s reliance on the premise that the judge had already dismissed recusal applications brought before him, turning the doctrine of judicial finality on its head. It defies common sense and natural justice to hold that an accused judge can be the final and conclusive arbiter of allegations concerning his own corruption or misconduct. Allowing a judge’s own refusal to recuse himself to serve as an ironclad shield against disciplinary oversight makes a mockery of accountability. One cannot reasonably expect to obtain justice when judges sit in judgment of cases that touch upon the collective misconduct and accountability of their peers.
The JSC now faces a decisive test of legitimacy. With judicial officers forming a dominant voting bloc in its membership, the public is left to wonder whether the Commission will act as a genuine watchdog or an old boys' club protecting its brethren from scrutiny. Unless the JSC is in cahoots with the bench to stifle transparency, it must immediately appeal this dangerous decision to the Court of Appeal. Public confidence in the administration of justice cannot survive a system where judges are judge, jury, and shield in their own cause.
Beyond the appellate corridors, the legal profession must confront an uncomfortable reality: the Law Society of Kenya (LSK) must urgently explore new frontiers of pressure rather than perpetually submitting to the very court it seeks to reform. True reform has rarely been won by playing inside a rigged arena. The Constitution explicitly guarantees the right to picket, assemble, and demonstrate, and the bar must not shy away from mass action, including court boycotts, if judicial accountability continues to be sabotaged from within. Kenya’s history offers an unmistakable blueprint: when the judiciary reached a moral nadir under Chief Justice Bernard Chunga, advocates took to the streets, marched on his chambers, and sustained relentless public pressure that forced his resignation. If the bench insists on closing every legal door to accountability, the bar and the public must take the struggle outside the courtroom once again.